In Nevada, assault with a deadly weapon (ADW) is when a person uses a gun, knife or other deadly weapon to (1) strike a victim or (2) place a victim in fear of immediate bodily harm. ADW is a category B felony punishable by 1 to 6 years in state prison and a fine of up to $5000.00.
You do not have to hold or wave the weapon to cause this fear. Simply having the present ability to use the weapon suffices as assault with a deadly weapon.
Examples
- Brandishing a knife at someone’s face
- Pointing a gun at someone
- Holding a fist up at someone’s face while carrying a pistol
- Throwing a lead pipe or other heavy object in someone’s direction
Penalties
Under NRS § 200.471(2)(b), ADW is a category B felony carrying:
- 1 – 6 years in Nevada State Prison, and/or
- up to $5,000 in fines
Though it may be possible to plea bargain the charge down to a full dismissal or simple battery (NRS 200.481), which is only a misdemeanor.
Defenses
It may be possible to fight Las Vegas NRS 200.471(2)(b) charges by claiming one or more of the following defenses:
- You had no criminal intent
- You did not cause reasonable apprehension of being harmed
- You acted in lawful self-defense
- The accuser consented to the assault
- No lethal weapon was involved
The charge should be dismissed as long as the D.A. lacks sufficient evidence to prove guilt beyond a reasonable doubt.
In this article, our Las Vegas criminal defense lawyers will discuss:
- 1. “Assault With a Deadly Weapon” Defined
- 2. Defenses
- 3. Penalties
- 4. Record Seals
- 5. Immigration Consequences
- 6. Related Offenses
- Additional Reading
“Assault with a lethal weapon” is a felony.
1. “Assault With a Deadly Weapon” Defined
Violating NRS 200.471(2)(b) has two components:
- Assault, and
- Use of a lethal weapon.1
“Assault”
Assault (NRS 200.471) comprises either:
- Unlawfully attempting to use physical force against another person; or
- Intentionally placing another person in reasonable apprehension of immediate bodily harm.
Assault does not require actual physical touching. If there is touching, it would then be battery. Instead, assault is like an attempted battery where you intentionally act in a way that causes the alleged victim reasonable apprehension of being unlawfully touched in the immediate future.
A common example of assault includes deliberately holding up a fist to someone in a way that would make the person think a punch is coming. Even using fighting words like, “I am gonna break your arm right now” may qualify as assault under certain circumstances.2
“Deadly Weapon”
Like it sounds, deadly weapons comprise the following kinds of devices:
- Any instrument which is likely to cause substantial bodily harm if used in the ordinary manner contemplated by its design and construction, or
- Any material which is capable of causing substantial bodily harm under the circumstances in which it is used or threatened to be used.
Therefore, lethal weapons comprise not just guns or knives. They also may include normally innocuous objects like pipes, scissors, or bricks that could be used in a deadly way.3
“Assault With a Deadly Weapon”
An NRS 200.471(2)(b) violation occurs when a person commits an assault either:
- By using a lethal weapon, or
- With the present ability to use a lethal weapon4
Therefore, “assault with a deadly weapon” includes situations where you do not necessarily use or brandish the weapon. Simply having the weapon on your person or within reach during the assault would qualify as assault with a fatal weapon.
Example: Butch suspects Greg is fooling around with his girlfriend. Butch finds Greg in the Hard Rock Hotel and holds his fist up next to his face. Butch is also carrying a hunting knife on his belt. A security guard witnesses this encounter and calls the Las Vegas Metropolitan Police Department, who then arrest Butch and book him at the Clark County Detention Center.
Butch faces NRS 200.471(2)(b) charges because he put Greg in reasonable anticipation of being battered by holding up his fist and having a knife within reach.
Other typical scenarios amounting to an NRS 200.471(2)(b) violation include pulling a gun or knife on another person. In a bar fight context, hurling a beer bottle at someone else might qualify as well.
Throwing a punch usually will not be considered an NRS 200.471(2)(b) violation unless you are a professional boxer or wearing “brass knuckles.”
2. Defenses
Depending on the case, there may be various effective strategies a Las Vegas criminal defense attorney could use that may raise a reasonable doubt and preclude a guilty verdict. Typical defenses include:
- You had no criminal intent
- The accuser had no reasonable apprehension
- You acted in lawful self-defense
- The accuser consented to the assault
- You had no deadly weapon
Note that it is not a defense if no one was hurt or physically touched.
You Had No Criminal Intent
Assault is an intent crime in Nevada.5 This means you can be convicted only if you intended to act in a way that caused someone else to feel reasonable apprehension of being battered.
Example: Jack is openly carrying a dirk on his belt. While walking down the street, he trips and falls, causing his knife to detach and fly towards another pedestrian. The pedestrian feared that the knife would strike him. But since Jack had no intention to put the pedestrian in apprehension of immediate bodily harm, Jack is not criminally liable for assault with a fatal weapon.
Accidents do not count as assaults. As long as the state’s evidence fails to demonstrate that you had intent, then the case should be dismissed.
The Accuser Lacked Reasonable Apprehension of Being Hurt
Assault by definition is intentionally acting in such a way that puts someone else in reasonable apprehension of immediate bodily harm.6 So if the criminal defense attorney can show that the alleged victim’s fear was unreasonable or that the bodily harm threatened was not immediate, then the case should be thrown out.
Example: Kyle is openly carrying a pistol on his belt when he walks into a Mesquite 7-Eleven to buy a snack. Another patron sees the pistol and shrieks, fearful that Kyle is about to shoot her. The police come and book Kyle at the Mesquite Jail. However, prosecutors decline to press charges because they believe the patron’s fear of being hurt was unreasonable.
In the above example, Kyle was allowed to openly carry the pistol at 7-Eleven, and nothing he did was suspicious. So even though the patron may have genuinely been scared upon seeing the gun, Kyle committed no crime.
You Acted in Self-Defense
Nevada self-defense laws permit you to defend yourself against immediate bodily harm as long as you do not fight back with any more force than necessary.7
Example: Harry sees Greg on the street, who owes him money. Harry calls to Greg, holds up his fist and threatens to “beat in his face” if Greg does not pay him back. In response, Greg produces his pocketknife and holds it up. In this situation, Greg displaying the pocketknife is an act of lawful self-defense in response to Harry’s threat to punch him.
Since Harry in the above example started the fight by assaulting Greg with his fist, Greg was justified to protect himself by holding up his weapon. The fact that Greg merely displayed the knife and did not try to use it demonstrates that Greg was acting in a measured way and did not use more force than necessary to deflect Harry’s threat.
The Accuser Consented
This consent defense usually comes into play in the arena of sports such as boxing or fencing where physical contact is part of the game. If the criminal defense attorney can show that the accuser somehow consented to be assaulted, then the assault charges will not stand.
Note that Nevada law prohibits duels.8
You Did Not Use or Have a Lethal Weapon
If the prosecution cannot show that a lethal weapon was used or was available to be used, the NRS 200.471(2)(b) charge should be dismissed or reduced to simple assault (which is only a misdemeanor).
Example: Lisa and Julia get into a verbal argument. At one point, Lisa screams, “I am gonna to kill you!” Julia notices a bulge in Lisa’s pocket, which Julia presumes is a pistol. Julia calls the police and claims that Lisa committed assault with a deadly weapon on her. But when police arrive and realize that the only objects in Lisa’s pocket were her keys and phone, the police decline to arrest her for anything.
Had Lisa in the above example held up her fist or attempted to throw a punch, she could be liable for simple assault.9
NRS 200.471(2)(b) prohibits assault with deadly weapons.
3. Penalties
Assault with a deadly weapon is a category B felony in Nevada carrying:
- One to six years (1 – 6) in prison, and/or
- Up to $5,000 in fines
This penalty remains the same whether or not the assault was against a “protected class” such as police officers. Nor does it matter whether you were a prisoner or someone currently on parole or probation in Nevada.10
Plea Bargains
Depending on the case, a Las Vegas criminal defense attorney may be able to persuade the prosecutors to reduce a Nevada NRS 200.471(2)(b) charge down to:
- Simple assault,11
- Simple battery,12 or
- Trespass (NRS 207.200)13
All of these offenses are only misdemeanors. The standard sentence includes:
- Up to 6 months in jail, and/or
- Up to $1,000 in fines (or equivalent community service time)14
4. Record Seals
Convictions for assault with a deadly weapon may be sealed ten years after the case ends. Though if the case gets reduced or dismissed, then the waiting period decreases significantly:
| Nevada Assault Conviction | Waiting period to get a record seal |
|---|---|
| Assault with a deadly weapon (category B felony) | 10 years after the case ends |
| Simple assault (misdemeanor) | 1 year after the case ends15 |
| Dismissed charges (no conviction) | Immediately16 |
Learn more about how to get a record seal.
5. Immigration Consequences
Deadly weapon assault is deportable. Any gun-related conviction carries the risk of removal for non-citizens.17
Immigrants who are charged with a crime in Nevada should retain an attorney right away. The D.A. may be willing to negotiate the charges down to a non-deportable offense or dismiss them completely.
6. Related Offenses
Using a Deadly Weapon in the Commission of a Crime
When you use or carry a lethal weapon while executing a crime, the court will increase the sentence by one to twenty (1 – 20) years. Though this added sentence may not exceed the sentence for the underlying crime…
So for example, if you are sentenced to 7 years in prison for armed robbery (NRS 200.380), the additional sentence can be no more than 7 years for a total sentence of 14 years.18
Being an Ex-felon in Possession of a Firearm
It is against Nevada law for convicted felons to possess guns. Being an ex-felon in possession of a firearm (NRS 202.360) is a category B felony, carrying:
- 1 to 6 years in prison, and
- Up to $5,000 in fines (at the judge’s discretion)
Brandishing a Firearm
It is a misdemeanor to draw or wave a gun in a threatening or provocative manner. Brandishing a firearm (NRS 202.320) carries:
- Up to $1,000 in fines, and/or
- Up to 6 months in jail
Battery With Substantial Bodily Harm
Battery with substantial bodily harm is inflicting unlawful physical force that results in severe physical harm. A conviction is a felony offense that carries 1 to 15 years in prison.
Additional Reading
For more in-depth information, refer to these scholarly articles:
- Commitment – Evidence of Character – Assault with Deadly Weapon – Impeachment of Witness – Criminal Law Magazine and Report.
- Criminal Law: Assault with Unloaded Gun – Criminal Law Review.
- Human Immunodeficiency Virus as a Deadly Weapon: Proposing a California Assault Law That Recognizes HIV as a Deadly Weapon – Thomas Jefferson Law Review.
- Assault-Related Conduct under the Proposed California Criminal Code – Hastings Law Journal.
- People v. Chance: Analyzing the Assault Statute’s “Present Ability” Requirement – Berkeley Journal of Criminal Law.
Legal References:
- NRS 200.471.
- Id.; Wilkerson v. State (1971) 87 Nev. 123, 482 P.2d 314; Anstedt v. State (1973) 89 Nev. 163, 509 P.2d 968.
- NRS 193.165; Loretta v. Sheriff, Clark County (1979) 93 Nev. 344, 565 P.2d 1008; State v. Napper (1870) 6 Nev. 113.
- NRS 200.471.
- Id.
- Id.
- See NRS 200.200.
- NRS 200.450.
- State v. Davis (1879) 14 Nev. 407; Holland v. State (1966) 82 Nev. 19, 414 P.2d 590.
- NRS 200.471.
- Id.
- NRS 200.481.
- NRS 207.200.
- NRS 193.150.
- NRS 179.245.
- NRS 179.255.
- 8 USC § 1227(a)(2)(C), INA § 237(a)(2)(C); Camacho-Cruz v. Holder, 621 F.3d 941 (2010); however, note that the U.S. Supreme Court in Sessions v. Dimaya, No. 15–1498 (2018) invalidated the law that required mandatory deportation for “crimes of violence.”
- NRS 193.165.