NRS 200.485 is the Nevada law prohibiting battery domestic violence (BDV) — intentionally inflicting unlawful physical force on current or former spouses, dating partners or certain family members. A first offense is usually a misdemeanor, carrying fines, 48 hours of community service, 6 months of counseling, and no jail. But BDV becomes a felony if there was strangulation, deadly weapons, or substantial injuries.
Examples of BDV include:
- pushing or slapping an ex-husband or wife
- punching or strangling a significant other
- spitting on a spouse
Common defenses to these charges include:
- The accused acted in self-defense;
- The alleged victim made up the whole abuse story and perhaps self-inflicted his/her injuries
- The incident was an accident; or
And if the police may have conducted an illegal search, the judge can “suppress” any incriminating evidence they found. This, in turn, may leave the prosecutor with too weak of a case to prove guilt beyond a reasonable doubt.
In this article, our Las Vegas criminal defense lawyers answer frequently-asked-questions:
- 1. What is battery domestic violence in Nevada?
- 2. How do I fight the charges?
- 3. Will I go to jail under NRS 200.485?
- 4. Can I get the case dismissed?
- 5. Can I get probation?
- 6. Do I have to show up to court?
- 7. Will my case go to trial?
- 8. What if the victim wants to drop the charges?
- 9. What if there is a restraining order against me?
- 10. Will I lose child custody?
- 11. Can I be extradited to Nevada?
- 12. Will I get deported?
- 13. Is battery domestic violence a federal crime?
- 14. Will I face additional charges?
- 15. When can I seal my record?
- 16. Will I lose my gun rights?
- 17. California law versus Nevada law
- 18. Legal history
- 19. Summary of the law
- 20. Victim resources
NRS 33.018 reads:
“Domestic violence occurs when a person commits [battery] against or upon the person’s spouse or former spouse, any other person to whom the person is related by blood or marriage, any other person with whom the person is or was actually residing, any other person with whom the person has had or is having a dating relationship, any other person with whom the person has a child in common, the minor child of any of those persons, the person’s minor child or any other person who has been appointed the custodian or legal guardian for the person’s minor child[.]”
NRS 200.485 defines the Nevada offense of “battery domestic violence” (BDV) as having the following two elements:
- The accused and the alleged victim are either related (with some exceptions), married, or dating; and
- The accused committed battery (the intentional infliction of unlawful physical force) against the alleged victim.
Nevada prosecutors have the burden to prove both of these two elements beyond a reasonable doubt in order for the court to convict the accused of BDV. In this section we discuss these two elements in detail:
BDV charges apply only when the accused and alleged victim share a familial, intimate, or domestic relationship. Examples of relationships include:
- spouses (current, separated, or divorced)
- domestic partners (current or separated)
- co-parents of a minor child
- significant others (regardless of whether the relationship is exclusive)
- minor children of the above or of the defendant
- relatives by blood or marriage with the exception of cousins or siblings (unless they are in a guardianship or custodial arrangement with the defendant)
- the accused is the guardian of the alleged victim
Therefore a person should not be convicted of BDV in Nevada if the accused and alleged victim share no familial, romantic, or domestic relationship. Physical violence between friends, acquaintances, neighbors, or strangers may qualify as battery (NRS 200.481) but never as BDV.
The definition of the Nevada crime of battery (NRS 200.481) is when a person deliberately touches another person in a violent, aggressive, hostile, or simply unwanted way. Battery charges typically involve allegations of either:
- hitting (punching, slapping, crushing, or pinching)
- kicking or stepping on
- pushing or shoving
- choking or strangling
- spitting on or biting
- throwing an object that hits or otherwise touches the alleged victim
- spilling something on the alleged victim
- tugging at the clothes, handbag, or other item on the body of the alleged victim
- any indirect unlawful touching, such as striking a bicycle while the alleged victim is riding it
Note that there needs to be an actual physical touching for a person to be convicted of battery. For example, raising a fist at someone’s face but not making any physical contact does not fall within the legal definition of battery in Nevada. That action is instead considered “assault” under NRS 200.471 because it put someone in the apprehension of unlawful physical contact that did not end up materializing.
Note that a person should not be convicted of battery in Nevada when the touching is unintentional. If a shopper slips on some unmarked wet floor and careens into a nearby stock clerk, our Nevada BDV lawyers would argue that no crime was committed because the shopper had no intention of hitting the stock clerk.
However, not all honest accidents let the accused off the hook for criminal liability. Let us say that same shopper decided to slide on the wet floor for fun and accidentally careens into the stock clerk. Then the shopper could be liable for battery because he/she should have reasonably foreseen that sliding on a wet floor could result in someone else being hurt.
Finally, note that a person can be convicted of battery in Nevada even if the alleged victim does not sustain any injuries or even feels pain. All that matters is that there was unlawful or unwanted physical touching regardless of the consequences.1
The best methods for fighting charges depend on the individual facts. Three common defenses to Nevada BDV charges are:
- False allegations/ self-inflicted injuries
Self-defense law allows anyone to use physical force on another person as long as he/she reasonably believes it is necessary to avoid imminent injury or death to themselves or someone else. People using self-defense are not allowed to inflict more violence than necessary to protect themselves or others.
Example: Grace and Sally are steady girlfriends in Searchlight. They have an altercation over rent money. Eventually, Grace slaps Sally. Sally then shoves Grace to the ground to stop the attack. Grace calls 911 and claims Sally shoved her. Although shoving ordinarily qualifies as criminal battery, the Clark County D.A. would probably not file charges against Sally because Sally was acting in reasonable self-defense that stopped the attack and did not escalate it.
Often self-defense matters come down to “he said/she said” situations. But in some cases, there is a video recording of the incident or witnesses who saw the whole exchange. And medical experts may be able to testify as to whether a certain injury was more in line with self-defense than with direct aggression.
Battered person’s syndrome is a recognized medical condition that drives repeated abuse victims to retaliate and batter their abusers out of self-defense. In Nevada, this syndrome is typically used as a defense only in cases of domestic homicide and not in cases of abuse.
Our Las Vegas domestic violence attorneys find that many Nevada BDV cases ensue from furious or vengeful spouses or exes attempting to get the other person in hot water. So they call the police and falsely report to authorities that they were abused. Many false accusers go so far as to harm themselves and then blame the accused for their injuries.
Fortunately, an in-depth investigation may be able to reveal when a self-proclaimed BDV victim is deceiving law enforcement and fabricating evidence. Additionally, expert medical witnesses can often distinguish between genuine injuries and self-inflicted ones.
Example: In Sparks, Abby discovers that her boyfriend Sid has been sleeping with Abby’s best friend. Wanting to cause him grief, Abby phones 911 and makes up a story about Sid stabbing her. Then while law enforcement is en route, Abby takes a kitchen knife and cuts her arms and legs. The police then book Sid at the Washoe Detention Center and photograph Abby’s injuries. After Sid gets charged with BDV, his defense attorney retains an expert medical witness to scrutinize Abby’s knife wounds. This expert studies the angle of the cuts and determines that they were probably self-inflicted. This testimony compels the D.A. the drop the BDV charge.
Note that Abby in the above example may not get away with her ruse. As explained below in question 8, alleged victims who make up BDV allegations face charges for making a false police report (NRS 207.280).
Honest accidents that ensue from unlucky, unforeseeable situations should not result in criminal liability. If the prosecutor cannot prove beyond a reasonable doubt that the accused intentionally used unlawful physical force, no BDV occurred. For example:
Example: Fiances Esther and Edward have an argument in their Moapa house. Esther runs to the bathroom to be alone, and she does not realize Edward is tailing her. Esther then slams the bathroom door behind her, hitting Edward. Had Esther hit Edward on purpose, she could be liable for BDV in Nevada. But because it was a legitimate accident, she should not face charges.
Had Esther known in the above example that Edward was right behind her, then she would face Nevada BDV charges because it was reasonably foreseeable that slamming the door behind her would cause Edward to be hit.2
Note that police mistakes can also help a defendant’s case in fighting charges. If law enforcement may have found evidence through an illegal search, the defendant can file a motion to suppress asking the judge to disregard the unlawfully discovered evidence. If the judge agrees, the D.A. may be left with insufficient evidence to sustain a conviction.
Usually not for a misdemeanor first-offense.
BDV may be prosecuted as either a misdemeanor (the least serious charge), a gross misdemeanor, a category C felony, or a category B felony (the most serious charge). How a specific case is ultimately prosecuted depends on five factors:
- Whether the defendant had a previous BDV conviction within the last seven years
- Whether the defendant strangled the alleged victim
- Whether the defendant used a deadly weapon on the alleged victim such as a gun or switchblade
- Whether the victim was pregnant, and the defendant knew — or should have known — that
- Whether the alleged victim sustained substantial bodily harm such as a debilitating injury, burns, or disfigurement
Predictably, a defendant with no prior history of domestic abuse will be treated more leniently than someone who has a prior history. And if the alleged domestic violence offense was minor, the defendant will be treated more leniently than if it involved deadly weapons or strangulation or caused serious bodily harm. The following table outlines all the possible penalties for domestic violence convictions:
|Nevada “Battery Domestic Violence” Penalty Chart|
|Type of BDV case||Penalties~|
|First-time BDV in the last seven years*|
|Second-time BDV in the last seven years*|
|Third-time BDV in the last seven years*|
(Category B felony)
|First-time BDV if the victim is pregnant, and the defendant knew it — or should have known it|
|Subsequent BDV if the victim is pregnant, and the defendant knew — or should have known — it|
(Category B felony)
|BDV with strangulation in Nevada|
(Category C felony)
|BDV resulting in substantial bodily harm but with no deadly weapon|
(Category B felony)
|BDV with deadly weapon but no substantial bodily harm|
(Category B felony)
|BDV with a deadly weapon and substantial bodily harm|
(Category B felony)
|*There was no strangulation, deadly weapons, pregnant victim, nor substantial bodily harm to the victim.|
~A standard penalty in any type of Nevada BVD case is that the defendant is forbidden from picking up any new arrests or citations (other than minor traffic tickets) while the BDV case is still open.
^Any jail time may be served intermittently if the judge approves it as long as each period of incarceration spans at least twelve consecutive hours.
Note that any BDV incident will be charged as a category B felony if the defendant has a prior conviction of domestic violence with a deadly weapon or felony domestic violence. The penalty is two to fifteen years in prison, and fines of $2,000 to $5,000.
Our Nevada domestic abuse attorneys resolve most of our BDV cases with a negotiation (“plea bargain”) instead of a trial. A common plea bargain for a misdemeanor domestic violence first offense involves the defendant pleading guilty to BDV in exchange for the minimum penalties:
- $348 fine,
- 48 hours of community service,
- domestic abuse counseling (at the defendant’s expense, usually around $800), and
- a six (6)-month suspended jail sentence that will not be imposed as long as the defendant stays out of trouble until the case is closed and completes the other sentencing terms
The benefit of this negotiation is that the defendant avoids the time, expense, and uncertainty of trial. And although the accused has to plead to a BDV conviction, the penalties are usually far less than what he/she would face if found guilty at trial.3
It is actually easier to have a first-degree murder charge reduced to second-degree murder than it is to have a misdemeanor BDV charge reduced to simple battery. That is because there is a specific provision of Nevada law that prohibits prosecutors from dismissing or reducing BDV charges to a lesser offense unless the state’s evidence is clearly too weak to support a guilty verdict at trial. Therefore, our lawyers’ job is to show the prosecutors that their evidence is too weak to sustain a BDV conviction.
As explained above in question 2, a criminal defense attorney will intensively investigate every aspect of a BDV case in an effort to:
- attempt to poke holes in the state’s argument;
- produce exculpatory evidence (evidence that suggests the accused is innocent);
- show the D.A. that the state’s evidence is too insufficient, unreliable, or inadequate to carry a BDV conviction; and
- convince the prosecutor to dismiss the charge or reduce it to a lesser misdemeanor charge such as battery (NRS 200.481) or breach of peace (NRS 203.010).
In sum, it is certainly possible for criminal defense lawyers to negotiate a charge reduction or dismissal in BDV cases. Just note that it is an uphill battle that requires copious investigation and negotiation.4
It is against Nevada law for courts to grant probation for defendants convicted of BDV. However, judges have the option to “suspend” the accused’s jail sentence in misdemeanor cases as long as the accused completes a course of counseling.
Example: Henry gets convicted at trial in Mesquite of first-time misdemeanor BDV, which carries a maximum six-month jail sentence. During his sentencing, Henry shows remorse to the judge, and Henry’s attorney points out that Henry has no prior criminal record. So the judge decides to give Henry a break by granting him a “suspended” six-month jail term in exchange for Henry participating in twenty-six weeks of BDV counseling.
If Henry finishes the counseling requirement, the judge will not send him to jail. But if Henry does not finish counseling, the court may “un-suspend” the jail term and order him to serve the six months at the Clark County Detention Center.
In the above example, Henry missing just one counseling class is sufficient for the judge to un-suspend his jail sentence. So people with suspended BDV sentences have to be very careful because just one mistake can result in the court imposing jail.5
Many clients that our Las Vegas battery domestic violence lawyers represent are tourists who live out-of-state. It would be a tremendous hardship for them to have to return to Nevada for each court hearing. Fortunately, most of our clients never have to set foot in a courtroom.
6.1. Misdemeanor BDV
People accused of misdemeanor BDV may never have to appear in court at all as long as they have an attorney go in their place. It is usually not required for defendants to personally appear at arraignments or status checks.
Judges do like it if defendants show up to their sentencing hearings if there is a plea deal. But even then it may be possible for defendants to fill out a notarized “written entry of plea” in lieu of showing up to court. If the case goes to trial, however, the defendant will have to be present.
6.2. Felony BDV
People accused of felony BDV may be able to stay home from most court appearances if they have an attorney. But the defendant’s presence is usually required at preliminary hearings, sentencings, and of course trials.
6.3. Missing a court appearance
If a BDV defendant does not hire an attorney and misses a court appearance, the judge will issue a bench warrant. That means the defendant can be arrested at any time and brought into court to answer for the charges.
Additionally, prosecutors can charge no-shows with the additional crime of failure to appear (NRS 199.335). This carries up to four (4) years in State Prison. So if a defendant thinks he/she will not be able to come to a court appearance, it is important an attorney appears on his/her behalf.6
The vast majority of BDV cases do not go to trial. They are usually resolved through a plea bargain or (in lucky cases) a dismissal, as explained above in questions 3, 4, and 5. But if the prosecutor refuses to offer a fair negotiation, the defendant may choose to exercise his/her right to have a trial.
People facing BDV charges are entitled to either a bench trial or a jury trial. (However, most municipal courts cannot offer jury trials.) People facing Nevada BDV charges should discuss with their attorney the pros and cons of going to trial, and whether the risks outweigh the benefits.7
It is common after BDV arrests for the purported victims to admit they falsely accused the defendant. Often they just want the charges dismissed so that they can get on with their lives. But a recanting victim usually has no effect on whether a criminal case goes forward.
Prosecutors assume that a purported victim’s initial accusations are truthful. So when the purported victim recants his/her BDV allegations, prosecutors suspect that the purported victim has ulterior motives. These may include:
- The purported victim reconciled his/her relationship with the accused.
- The purported victim is fearful of testifying as a witness at trial.
- The accused is the breadwinner, and the purported victim needs the accused out of jail so he/she can keep financially supporting the accused and their family.
- The purported victim is afraid that the accused’s friends and family (or even the accused him/herself) may attempt to harm the purported victim out of revenge for continuing to help the police.
In short, a recanting victim usually does not stop a BDV charge from going forward.
Example: LVMPD responds to a 911 call where Steve claims his estranged wife Jodie cut him, and he shows the police the knife wounds as proof. So the police arrest Jodie for BDV, and the Clark County D.A. files charges. But shortly afterward Steve and Jodie patch things up, and Steve tells prosecutors that he self-inflicted his stab wounds in order to get Jodie into trouble.
In the above example, chances are the prosecutor will pursue the BDV case and leave it to the judge or jury to determine what happened. Steve coming clean will probably not get Jodie’s case dismissed, at least not initially.
Often Nevada prosecutors believe their case is strong enough to prove a BDV charge even without victim testimony. So if an alleged victim recants, prosecutors may rely on such evidence as the following:
- Witness testimony (if other people were present at the incident)
- Medical records of the alleged BDV injuries
- Expert medical testimony claiming that the alleged victim’s injuries were not self-inflicted
- Statements uttered by the alleged victim at the time of the alleged incident (unless they are excluded by the Rules of Evidence).
In fact, prosecutors may choose to call a recanting victim to testify at a BDV trial just so that the prosecutor can impeach his/her credibility on the stand. A “prior inconsistent statement” made by a victim can be used as evidence that BDV occurred:
Example: Leland was charged for punching his boyfriend Robbie. At trial in North Las Vegas Justice Court, Robbie admits he made up the story about Leland punching him because he was angry at Leland for cheating. The next witness the prosecution calls is Robbie’s neighbor, who claims that Robbie told him after the arrest that Leland had punched him because Robbie would not lend him money. When rendering a verdict, the court will consider Robbie’s testimony as well as his “prior inconsistent statement” to Robbie’s neighbor.
Note that “prior inconsistent statements” can come from various sources. Like in the above example, it can be a third-party who heard the alleged victim say he/she was abused. Prior inconsistent statements may also be found in 911 call recordings or victim statements made to the police who arrived at the scene.
That being said, sometimes the alleged victim is the only real evidence a prosecutor has. And if that alleged victim fails to cooperate with the state, then prosecutors may have no choice but to drop the case or reduce the charge to a more minor offense.
In theory, the D.A. may press charges against accusers for making false allegations. But in practice, it does not happen all the time. If it does, false accusers may be prosecuted for making a false police report. It is a misdemeanor carrying:
- up to 6 months in jail, and/or
- up to $1,000 in fines
When prosecutors subpoena an alleged victim to testify at BDV trial and he/she no-shows, the judge may issue a bench warrant. That means police may arrest the alleged victim and haul that person into court. Then the judge may punish the victim with jail and/or a fine.
In reality, however, judges infrequently issue bench warrants to alleged victims who fail to appear at trial. At that point either the trial goes on without the alleged victim’s testimony, or the prosecutor drops the charges. Learn more in our article about how to quash Nevada bench warrants. 8
Many of the people facing BDV charges also have restraining orders against them mandating that they avoid contact with the alleged victim. In some cases, the accused may also have to surrender his/her firearms while the restraining order is active. Nevada recognizes two kinds of restraining orders:
- Temporary protective orders (TPOs): The maximum duration is 45 days.
- Extended protective orders: The maximum duration is one year.
Note that judges typically grant TPOs on an emergency basis without hearing the accused’s side of the story. Afterward, the accused may request a hearing in order to contest the TPO.
Example: Henderson couple George and Bella have broken up and are arguing over who gets to stay in their apartment. As a ploy to keep Bella from coming back to the apartment, George petitions the court for a temporary restraining order on grounds that George fears for his life around Bella. In response, Clark County Family Court issues a TPO immediately. Bella then requests a hearing that week to tell her side of the story and counter George’s claims. If the court finds for Bella, it will drop the TPO.
Also, note that violating a protective order (NRS 33.100) is a misdemeanor crime in itself. The punishment carries up to $1,000 in fines and/or up to 6 months in jail.
Finally, note that a second offense of violating an extended protection order is a gross misdemeanor. And a third or successive offense of violating an extended protection order is a category D felony. Violating a TPO is always a misdemeanor.9
A BDV charge alone may not cause the accused to lose custody of or access to his/her kids. But these cases often involve a restraining order, and the judge may very well require that the accused have no or limited access to his/her minor children while the criminal case is pending.
If the accused later enters a child custody dispute, the family courts may decide that it is not in “the best interest of the child” for someone with a BDV conviction to have child custody. That is why it is of vital importance for parents accused of BDV in Nevada to retain counsel to help foreclose the possibility of losing their kids down the line.10
Under extradition law, anyone who leaves Nevada with unresolved criminal charges risks being brought back by force. In reality, defendants facing felony BDV charges are much more likely to be extradited to Nevada than defendants facing only misdemeanor charges (but it is still possible).
Once a person suspected of committing a crime gets arrested in another state, the accused has two options:
- Waive extradition and willingly return to Nevada. In practice, the accused may still have to wait in an out-of-state jail for several weeks before Nevada law enforcement brings him/her back; or
- Fight extradition and remain out-of-state pending a court extradition hearing. At the hearing, the accused will either contest the extradition warrant or argue that he/she is not the correct person Nevada police is seeking. Sometimes the accused gets released on bail pending the hearing, or sometimes he/she remains in custody. It often depends on the holding state’s law.
Example: Shelly gets arrested in San Francisco for felony BDV stemming from an incident in Reno, Nevada. Since Shelly resides in California, she chooses to fight extradition in order to remain in her home state pending the court extradition hearing. During the hearing, Shelly’s lawyer presents evidence that the Reno police apprehended the wrong person and that Shelly never traveled to Reno. If the judge buys the defense’s argument, the judge will release Shelly from the San Francisco jail. If not, the judge will extradite Shelly to the Washoe County Detention Center to face Nevada BDV charges.
If Shelly in the above example wins her extradition hearing, her Nevada charges may still stand. She could then hire a Nevada attorney to represent her and fight the charges.11
Unlike American citizens, foreigners convicted of BDV may face deportation. In immigration law, BDV is considered a “triple whammy” because it may trigger removal from the United States on three grounds:
- as a deportable offense (regardless of whether the BDV charge is prosecuted as a misdemeanor or felony),
- as an aggravated felony (only if the BDV charge is prosecuted as a felony), and
- as a crime involving moral turpitude (only if the BDV charge is prosecuted as a felony)
Therefore, the goal of Nevada criminal defense attorneys representing aliens on BDV charges is to try to get the charge dismissed or reduced to a “non-removable” offense. Any non-citizen facing Nevada BDV charges is strongly encouraged to seek out counsel who not only will fight to “get a good deal” but also will play the system in an attempt to avoid deportation.12
Yes, a person can face domestic abuse charges in Nevada state court and/or federal court as well, but federal “BDV” law is a little different from Nevada’s. Firstly, BDV goes by a different name in federal court: “Interstate domestic violence.” And the scope of the federal law of “interstate domestic violence” is narrower than Nevada BDV law in two respects:
- In Nevada, BDV can occur between spouses, significant others, and certain relatives. Under federal law, “interstate domestic violence” applies only to people who are married, dating, or sexually involved. So blood relatives cannot be prosecuted for an act of domestic abuse in federal court.
- In Nevada, state courts have jurisdiction over an alleged incident of BDV that occurs within the state. In contrast, federal courts in Nevada can hear domestic abuse cases only if the matter involved interstate travel. Specifically, the federal crime of “interstate domestic violence” applies only if the accused traveled to or from Nevada or else caused the victim to travel to or from Nevada.
In sum, domestic abuse is against both Nevada state law and federal law, but Nevada BDV law is much broader than federal interstate domestic violence law.13
Domestic abuse crimes encompass a wide array of Nevada offenses of which BDV is only one. Depending on the circumstances of the case, suspects may face charges for child abuse, elder abuse, stalking, or harassment in addition to (or instead of) BVD. These crimes are summarized below:
- Child abuse, neglect, or endangerment (NRS 200.508) involves harming or abandoning a child under eighteen (18) years old. Penalties turn on whether the abuse was sexual, whether the abuse resulted in substantial harm, and if the child was under fourteen.
- Elder abuse (NRS 200.5099) involves injuring, isolating, or exploiting people aged sixty (60) or older. The penalty turns on whether bodily or mental harm occurred.
- Stalking (NRS 200.575) involves a course of conduct that would make another person reasonably fear for his/her safety. The sentence can range from fines to several years in prison depending on the severity of the accused’s behavior.
- Harassment (NRS 200.571) involves knowingly threatening someone with harm so that a person reasonably fears the threat will be carried out. The sentence can range from fines to several years in prison depending on the severity of the accused’s behavior.
Note that prosecutors will charge a BDV suspect with attempted murder if they believe the accused meant to kill the “victim.” And if the victim dies, the case turns into a “domestic homicide” incident where the accused faces charges for murder (NRS 200.030).14
The waiting period to get a BDV criminal record sealed in Nevada depends on two things:
- whether the accused was ultimately convicted of BDV, and
- whether the charge was prosecuted as a misdemeanor or a felony.
If a case gets completely dismissed and there is no conviction, then he/she is free to pursue a record seal immediately.
A misdemeanor or gross misdemeanor BDV conviction may be sealed seven (7) years after the case is closed in Nevada.
A category C or B “BDV” conviction may be sealed ten (10) years after the case is closed in Nevada.
|Type of Nevada “battery domestic violence” (BDV) charge||Waiting period to seal criminal record|
|Charge dismissed (no BDV conviction)||No waiting period. Record sealing can occur immediately.|
|Misdemeanor or Gross Misdemeanor||Seven (7) years from the time the case was closed.|
|Category C||Ten (10) years from the time the case was closed.|
|Category B||Ten (10) years from the time the case was closed.|
Note that if the accused agrees to a plea deal whereby the charge gets reduced to misdemeanor battery, the accused would have to wait only two (2) years before getting a record seal.
15.1. Importance of record sealing
People with past arrests or convictions often face discrimination from potential employers: Business owners and hiring managers frequently pass over otherwise qualified job applicants solely because of their criminal history.
Furthermore, having a criminal record can be socially stigmatizing and alienating to family, friends, and community members. So anyone with a criminal record is encouraged to seal criminal records for BDV as soon as possible so that it no longer comes up on background checks.
The process of getting a case sealed in the state of Nevada varies from court to court, but it is always a multi-step, confusing, and frustrating ordeal. It requires ordering a copy of criminal records, getting approval for the record seal from the prosecutor, petitioning the court, retrieving a court order, mailing the court order to multiple government agencies, and possibly having a court hearing.
People can attempt to navigate the process themselves, but it is suggested they hire an attorney to take care of it for them. For more general information on record seal procedures in Nevada as well as links to various Nevada courts’ record seal handbooks, refer to our article on sealing criminal records.15
Any battery domestic violence conviction causes the defendant to lose his/her gun rights, even if it was just for a misdemeanor. But there is one exception:
People convicted of BDV in the incorporated City of Las Vegas will not lose their gun rights. This is because Las Vegas Municipal Court (LVMC) does not permit jury trials. Read LVMC’s statement on battery domestic violence and gun rights.
The only way to get gun rights restored in Nevada is through a pardon.
Whereas Nevada has only one statute outlawing BDV (NRS 200.485), California has two separate statutes:
- California Penal Code 243(e)(1) pc prohibits battery between spouses, dating partners, relatives, or roommates irrespective of whether the injury occurred. Called “domestic battery,” this California charge is prosecuted as a misdemeanor and carries a maximum fine of $2,000 and/or a maximum sentence of one (1) year in jail.
- California Penal Code 273.5 pc prohibits causing a visible injury (“traumatic condition”) on a current or former spouse, dating partner, cohabitant, or co-parent. Called “corporal injury to a spouse or cohabitant,” this California charge can be prosecuted as either a misdemeanor or felony and carries up to four (4) years in prison.
Note that past domestic abuse convictions from California or other states may count as a prior BDV offense for people who pick up new charges in Nevada. So if someone was arrested for and convicted of “domestic battery” in Los Angeles within the last seven years and then gets arrested in Las Vegas today for BDV, Nevada law will treat that new charge as a second-time offense. And as explained above, penalties grow harsher for each successive offense within a seven-year period.16
It was only during the height of the women’s liberation movement that the plight of victims of domestic abuse attracted large-scale attention from the government. The first time the Nevada Legislature addressed domestic abuse issues was the late 1970s:
- 1979 – The Nevada Legislature passed A.B. 479, which provided for temporary restraining orders (TPOs) in some domestic abuse situations.
- 1981 – The Nevada Legislature passed S.B. 371, which created domestic abuse county advisory boards.
- 1983 – The Nevada Legislature passed S.B. 426, which concerned money allotments for domestic abuse organizations.
- 1984 – The Nevada Supreme Court chief justice closed the courts for a day so judges could receive domestic abuse training.
- 1985 – The Nevada Legislature passed three bills: S.B. 383, which increased the courts’ jurisdiction to issue domestic abuse-related TPOs; A.B. 652, which allowed police to make night arrests for battery on a spouse that causes bodily injury; and A.B. 229, which permitted warrantless arrests in domestic abuse cases.
- 1987 – The Nevada Legislature passed A.B. 412, which granted judges more discretion in handing down domestic abuse sentences.
- 1989 – The Nevada Legislature passed two bills: A.B. 514, which increased county funds for assisting domestic abuse victims; and A.B. 69, which spelled out the elements a police officer should consider when determining which party in a domestic abuse incident was the primary physical aggressor.
- 1993 – The Nevada Legislature passed A.B. 637, which allowed courts to hear evidence and expert testimony regarding domestic abuse syndrome (a.k.a. battered person’s syndrome) in some situations; and A.B. 540, which created more precise rules for issuing domestic abuse TPOs.
- 1995 – The Nevada Legislature passed three bills: S.B. 228, which spelled out more provisions regarding domestic abuse protective orders; A.B. 395, which gave courts the rebuttable presumption that it is not in the best interest of the child to award child custody to a perpetrator of domestic abuse or former spouse convicted of sexual assault; and A.B. 378, which increased the pool of parties who can be criminally liable for domestic abuse to include dating partners — the bill also ordered courts to be available 24/7 to issue TPOs.
- 1997 – The Nevada Legislature passed eight domestic abuse-related bills: S.B. 402, S.B. 387, S.B. 377, S.B. 155, A.B. 370, A.B. 348, A.B. 170, and A.B. 110. Collectively, they instituted or updated laws regarding bail, judicial authority, punishments, a missing persons repository, arrest procedures, and medical expense reimbursements.
- 2005 – The Nevada Legislature passed A.B. 219, which created the Nevada Council for the Prevention of Domestic Violence in order to help prevent and extinguish domestic abuse in Nevada.
- 2009 – The Nevada Legislature passed A.B. 164, which reclassified BDV with strangulation from a misdemeanor to a felony.
- 2019 – The Nevada Legislature passed S.B. 60, which increased penalties when the victim is pregnant.17
To review, the definition of BDV is when someone deliberately touches in an unlawful or unwanted way his/her
- (ex) spouse,
- (ex) dating partner, or
- relatives (not including siblings or cousins unless they are in a custodial or guardianship relationship with each other)
Below our Las Vegas criminal defense violence attorneys provide common abuse scenarios and explanations as to whether they qualify as BDV:
- A husband deliberately hitting his wife? Yes, because there was intentional unwanted touching between spouses.
- A wife deliberately slapping her husband? Yes, because there was intentional unwanted touching between spouses. Gender is irrelevant, and it does not matter if the slap was not hard or left no mark.
- A husband deliberately punching his husband, or a wife deliberately biting her wife? Yes, because there was intentional unwanted touching between spouses. Same-sex married couples are just as susceptible to BDV charges as opposite-sex couples.
- A boyfriend deliberately pushing his girlfriend? Yes, because there was intentional unwanted touching between dating partners. A person can still be charged with BDV against a significant other even if they are not married.
- A boyfriend deliberately shoving his boyfriend, or a girlfriend deliberately kicking her girlfriend? Yes, because there was intentional unwanted touching between dating partners. Sexual orientation is irrelevant.
- Deliberately pinching someone you have a crush on? No, because you are not currently or have been in a dating relationship. (Note that pinching anyone against his/her will could qualify as open or gross lewdness.)
- Deliberately choking an ex-spouse, ex-girlfriend, or ex-boyfriend? Yes, because there was intentional unwanted touching between former dating partners. It does not matter if the couples are no longer together.
- A parent beating up his/her minor child? No, that would be considered the child abuse, which can carry harsher penalties than BDV.
- A wife throwing a vase towards her husband and missing? No, because no touching occurred. The wife instead could be charged with assault for placing her husband in anticipation of being hit by the vase. Note there is no Nevada crime of “battery domestic assault.”
Consequently, not all fights invite liability for BDV in Nevada. There needs to be a familial, dating, or domestic relationship between the parties. And the incident needs to have involved deliberate touching that was unlawful or unwanted.
Nevada Network Against Domestic Violence (NNADV) – This statewide organization coordinates networking meetings, provides advocacy training, and educates people on domestic abuse issues.
Safe Nest – Nevada’s biggest domestic violence victims charity. It offers shelter, counseling, advocacy, and prevention services.
S.A.F.E. House – A non-profit that also provides shelter, counseling, advocacy, and prevention services.
¿Habla español? Visita nuestra página web en español sobre las leyes contra la violencia doméstica de la batería Nevada.
Arrested in California? See our article on Penal Code 273.5 corporal injury to a spouse or cohabitant.
Arrested in Colorado? See our article on Colorado domestic violence laws.
- NRS 200.481; NRS 33.018;18 U.S.C. § 2261
- Runion v. State, 116 Nev. 1041, 1046, 13 P.3d 52, 55 – 56 (2000) (“At common law, an individual had a right to defend himself against apparent danger to the same extent as if the danger had been real, provided he acted upon a reasonable apprehension of danger.”); NRS 200.485.
- NRS 200.485.
- Id.; Andersen v. Eighth Judicial District Court, 135 Nev. Adv. Op. 42 (September 12, 2019)(“Because our statutes now limit the right to bear arms for a person who has been convicted of misdemeanor battery constituting domestic violence, the Legislature has determined that the offense is a serious one. And given this new classification of the offense, a jury trial is required.”).
- See NRS 51.035, NRS 51.069; NRS 207.280; some statements made by an accuser are not admissible as evidence unless the accuser is unavailable to testify at trial and the defendant had the opportunity to cross-examine the accuser.
- NRS 33.017.
- NRS 125C.230.
- NRS 179.177 – 179.235.
- 22 CFR 40.21; 8 USC § 1227; U.S. v. Jimenez, 258 F.3d 1120, 1125 -1126 (C.A.9 (2001) (“An aggravated felony, as used in the Sentencing Guidelines, is defined as a “crime of violence … for which the term of imprisonment is at least one year.”)
- U.S. Code 110A.
- NRS 33.018.
- NRS 179.245.
- California Penal Code 243(e)(1) PC; California Penal Code 273.5 PC; NRS 200.485.
- Nevada Legislature Law Library.