A suspended sentence in Nevada is when defendants can avoid serving their jail or prison sentence as long as they abide by the terms of probation, such as paying a fine. But if defendants violate their probation, the judge will “un-suspend” their sentence and order them to serve their original jail or prison term.
In many cases, defendants can negotiate for a suspended sentence as part of a plea bargain with prosecutors. But suspended sentences are off-limits to defendants convicted of the most serious crimes, such as murder and sexual assault. Meanwhile, people convicted of category E felonies — the least serious class of felonies — are usually legally entitled to a suspended sentence.
In this article, our Las Vegas criminal defense attorneys discuss how suspended sentences work in Nevada criminal law. Click on a topic below to jump directly to that section:
A suspended sentence is a jail or prison term that convicted criminal defendants do not have to serve as long as they abide by all the other terms of their criminal sentence.
Therefore, suspended sentences keep defendants out of jail while providing them with an incentive not to re-offend. Then if defendants do violate the terms of their sentence, the judge may impose the original jail or prison sentence.
Prosecutors sometimes offer defendants a suspended sentence as part of a plea bargain in return for not going to trial. If the judge agrees, he/she will order the suspended sentence during the case’s sentencing hearing.
One of the most common Nevada plea deals where judges suspend sentences is for a first-time conviction of misdemeanor DUI. As a misdemeanor, DUI carries a maximum possible jail sentence of six months. But in the vast majority of cases, judges will agree to suspend this six-month sentence as long as the defendant does all of the following:
- pay a fine
- attend DUI School (an online course)
- attend a Victim Impact Panel
- avoid any further arrests or citations (other than minor traffic tickets) during the duration of the DUI case
- keep an ignition interlock device in the vehicle for a certain period of time
If the defendant successfully completes the above requirements, the judge will not order him/her to the six-month sentence. But if the defendant falls short of any of the requirements, the judge has the discretion to “un-suspend” the sentence and send the defendant to jail for the full six months.
Note that in some criminal cases, judges can also order a suspension of a fine payment. This means the defendant will not have to pay unless he/she violates the other terms of his/her sentence.
Nevada law gives judges the discretion to grant or deny suspended sentences in the vast majority of criminal cases. Predictably, some of the factors judges consider when making their decision include:
- the defendant’s criminal history (if any)
- the seriousness of the defendant’s criminal charges
- whether the defendant is a flight-risk or safety-risk to the community
- the defendant’s show of remorse
But there are some cases where judges cannot grant a suspended sentence and some where they must:
2.1. When suspended sentences are prohibited
Nevada judges must not grant a suspended sentence to defendants convicted of either of the six most serious Nevada crimes. These include:
- first- or second-degree murder
- kidnapping (first-degree only)
- sexual assault (a.k.a. rape)
- attempted sexual assault of a child less than 16-years-old
- lewdness with a child under 16
- being a habitual criminal, fraudulent felon, or habitual felon
Additionally, Nevada judges must not grant a suspended sentence to defendants convicted of any offense where its statute specifically prohibits a sentence suspension. Common examples of these crimes include:
- unauthorized practice of medicine (that causes death)
- escaping from prison (where a dangerous weapon is used, where hostage(s) are taken, or substantial bodily harm results)
- drug trafficking (with some exceptions)
- burglary (when the defendant has a previous conviction of burglary or a crime involving the forcible entry or invasion of a dwelling)
- home invasion (when the defendant has a previous conviction of burglary or a crime involving the forcible entry or invasion of a dwelling)
- housebreaking (when the defendant has three previous housebreaking convictions)
- larceny from a person (a.k.a. pick-pocketing, when the victim was sick from old age or another condition)
- failing to register as a sex offender (second or subsequent conviction in seven years)
Finally, Nevada judges must not grant a suspended sentence to defendants convicted of the following crimes unless a required psycho-sexual evaluation shows they do not have a high risk of re-offending:
- attempted sexual assault of a person age 16 or older;
- statutory sexual seduction (a.k.a. statutory rape)
- battery with intent to commit a crime (only sexual assault)
- child abuse or neglect
- child pornography
- open or gross lewdness
- indecent exposure
- soliciting a child for prostitution
- sexual penetration of a human corpse
- student-teacher sexual conduct
- luring (as a felony)
- sending threatening or obscene letters
- attempt to commit any of the above offenses
- coercion that is sexually motivated (or an attempt of this crime)
2.2. Where suspended sentences are required
Nevada judges generally must grant a suspended sentence to defendants convicted of a category E felony, but there are exceptions. Judges may refuse to suspend a defendant’s sentence for a category E felony if the defendant had two prior felony-level convictions
The sentencing range for category E felonies includes:
- 1 to 4 years in Nevada State Prison, and
- up to $5,000 (at the judge’s discretion)1
3. Length of suspended sentences
The maximum length of a suspended sentence depends on whether the crime is a felony, gross misdemeanor, or misdemeanor:
Suspended sentences for felony convictions may last a maximum of five (5) years.
Note that certain convicted felons face only a three (3)-year suspended sentence if they complete a treatment program. These usually include defendants who are either:
- veterans, or
- convicted of minor drug crimes
3.2. Gross misdemeanors
Suspended sentences for gross misdemeanor convictions may last a maximum of three (3) years2
Suspended sentences for misdemeanor convictions may last a maximum of six (6) months
4. Sentencing violations
Judges are not required to automatically revoke a suspended sentence and impose incarceration when defendants allegedly violate a sentencing term:
Instead, defendants get a probation revocation hearing where they can ask the judge for a second chance or explain that they were falsely accused of violating a sentencing term. Depending on the circumstances of the case, the judge may elect to keep the sentence suspended or remand the defendant to custody.
Note that once a judge officially closes a criminal case, any suspended sentence disappears, and the defendant will no longer be at risk of being incarcerated for that case. For example:
Example: Dominique is given a six-month suspended sentence for simple battery. The terms of her probation included avoiding further arrests for one year. After a year passes with no incident, the judge closes her battery case. Then the next day, Dominique gets arrested for battery again. Since her first battery case is already closed, this new arrest will not trigger the six-month suspended sentence from that first case.
Had Dominique in the above example gotten arrested prior the first battery case getting closed, then the judge may have ordered her to jail for six months on the first case. And that is separate from any jail Dominique may have to do if she gets convicted on battery for the second case.
Call a Nevada criminal defense attorney…
Arrested in Nevada? Call our Las Vegas criminal defense attorneys for a consultation. We will do everything to try to keep you out of jail and to get your charges dismissed or reduced. As a last resort, we can also take your case to trial in zealous pursuit of a full acquittal.