NRS § 212.090 is the Nevada statute that makes it a crime to escape from

• jail,
• prison,
• community correction facilities, or
• police custody.

The penalties for escape depend on the specific crime for which the prisoner was incarcerated:

Underlying charge or conviction	Penalties for escaping from incarceration or custody in Nevada
Misdemeanor or gross misdemeanor	If a dangerous weapon was used, escaping is a category B felony: 1 – 6 years in Nevada State Prison, and possibly up to $5,000 in fines
	If no dangerous weapon was used, escaping is a gross misdemeanor: up to 364 days in a Nevada jail, and/or up to $2,000 in fines
Felony	If the defendant used a dangerous weapon, took a hostage, or caused substantial bodily harm, escaping is a category B felony: 2 – 20 years in prison, and possibly up to $20,000 in fines
	Otherwise, escaping is a category B felony: 1 – 10 years in prison, and possibly up to $10,000 in fines

It may be possible to persuade prosecutors to lessen or possibly dismiss the charges through a plea bargain. Potential defenses include:

• the defendant was framed,
• the defendant was misidentified as the real escapee, or
• the defendant escaped out of lawful “necessity”

Note that the Nevada Department of Corrections publishes a list of escapees from state prison.

In this article, our Las Vegas criminal defense attorneys discuss the Nevada crime of escaping from prison. Click on a topic below to jump to that section:

• 1. What is the definition of escaping from custody in Nevada?
• 2. What are the penalties for breaking out under NRS 202.090?
• 3. What are the defenses?
• 4. Can defendants be deported?
• 5. Can I get a record seal?
• 6. Related offenses

1. What is the definition of escaping from custody in Nevada?

Criminal suspects or defendants who attempt to escape police custody or incarceration face an additional charge of violating NRS 212.090.¹ It makes no difference if the defendant succeeded or failed in breaking out.²

Note that NRS 202.090 applies both to people suspected or charged with a crime as well as people who have been convicted. And a person can be charged with escape by trying to break out of any of the following locations:

• a prison,
• a jail,
• a holding facility,
• a community corrections facility,
• a vehicle belonging to the Department of Corrections, a jail, or law enforcement,
• a court,
• in custody for a citizen’s arrest,³ and/or
• any other place where the person is in custody by law enforcement, even if the person is never charged or convicted for what he/she was arrested for

Most escapes occur when people “walk away” from a community corrections facility. But a few escapes do occur from maximum security facilities despite their high-tech security systems: These escapes typically involve complex planning, including someone on the outside facilitating the breakout.

Most escapees are eventually caught. The Nevada Department of Corrections posts the names and headshots and escapees and walk-aways who are currently at large.

2. What are the penalties for breaking out under NRS 212.090?

The punishment for attempting to escape from jail, prison, or police custody in Nevada hinges on whether the defendant is in custody for either a:

• misdemeanor,
• gross misdemeanor, or
• felony
  

2.1. Misdemeanors or gross misdemeanors

People who have been arrested for, charged with, or convicted of a misdemeanor or gross misdemeanor in Nevada face the following punishment if they escape police custody or incarceration:

If they use a dangerous weapon to facilitate the escape, attempting to break out of jail or prison is a category B felony. The sentence is:

• 1 to 6 years in prison, and
• possibly a fine of up to $5,000

Otherwise, attempting to break out is a gross misdemeanor. The sentence is:

• up to 364 days in jail and/or
• up to $2,000 in fines

2.2. Felonies

It is a category B felony for people who have been arrested for, charged with, or convicted of a felony to escape police custody or incarceration.

The specific punishment turns on whether any of the following three “aggravating circumstances” apply:

1. the defendant used a dangerous weapon,
2. the defendant took another person hostage, and/or
3. the (attempted) escape caused someone to sustain substantial bodily harm

If either of the aforementioned aggravating circumstances occurred, the punishment is:

• 2 to 20 years in prison, and
• possibly up to $20,000 in fines

Additionally, the sentence must run consecutively with the sentence for the underlying felony. And the court may not grant probation or suspend the sentence.

If neither of the aforementioned three aggravating circumstances applies, the punishment is:

• 1 to 10 years in prison, and
• possibly up to $10,000 in fines⁴

3. What are the defenses?

Depending on the case, a defense attorney can try to argue that the defendant was misidentified or framed by fellow inmates or angry police. If the defense attorney can raise a reasonable doubt that the defendant tried to escape, then the charge should be dropped.

There is also a possible defense called “necessity,” which means that the defendant escaped because it was a reasonable action to take under the circumstances. In order for the “necessity” defense to excuse an escape, all of the following five conditions must be met:

1. The prisoner faces a specific threat of death, forcible sexual attack, or substantial bodily injury in the immediate future;
2. There is no time to complain to authorities, or there exists a history of futile complaints which makes complaining pointless;
3. There is no time or opportunity to resort to the courts;
4. There is no evidence of force or violence used towards prison personnel or other “innocent” persons in the escape; and
5. The prisoner immediately reports to the proper authorities when he/she is safe from the immediate threat.⁵

Finally, it may be possible to show that the defendant never intended to escape and was instead framed.

How best to defend against charges of breaking out of police custody or incarceration turns on the available evidence, such as:

• surveillance video
• eyewitnesses
• forensic evidence (such as fingerprints, hair samples, and blood samples)

4. Can defendants be deported?

Immigration judges are likely to consider escaping from prison to be a crime involving moral turpitude, which is deportable. Consequently, any non-U.S. citizen facing criminal charges is urged to retain experienced legal counsel to attempt to get any criminal charges dismissed or reduced to a non-deportable offense.

5. Can I get a record seal?

There is no waiting time to pursue a criminal record seal if the defendant’s charges get dismissed.⁶ But if the defendant gets convicted, then the waiting period to pursue a record seal depends on the specifics of the case:⁷

Category of crime that defendant was incarcerated for in Nevada	Waiting period to get a record seal in Nevada for escaping from jail/prison
Misdemeanor	If the defendant used a dangerous weapon: 10 years after the case ends if the court considers the escape to be a “crime of violence”; or 5 years after the case ends if the court does not consider the escape to be a “crime of violence”
	If the defendant did not use a dangerous weapon: 2 years after the case ends
Gross misdemeanor	If the defendant used a dangerous weapon: 10 years after the case ends if the court considers the escape to be a “crime of violence”; or 5 years after the case ends if the court does not consider the escape to be a “crime of violence”
	If the defendant did not use a dangerous weapon: 2 years after the case ends
Felony	If the used a dangerous weapon: 10 years after the case ends if the court considers the escape to be a “crime of violence”; or 5 years after the case ends if the court does not consider the escape to be a “crime of violence”
	If the defendant took another person hostage: 10 years after the case ends if the court considers the escape to be a “crime of violence”; or 5 years after the case ends if the court does not consider the escape to be a “crime of violence”
	If the escape attempt caused someone to sustain substantial bodily harm in Nevada: 10 years after the case ends if the court considers the escape to be a “crime of violence”; or 5 years after the case ends if the court does not consider the escape to be a “crime of violence”
	If the escape involved no dangerous weapon, hostage, or substantial bodily harm: 5 years after the case ends

Note that if a defendant has a prior criminal conviction, then the defendant has to wait to pursue a record seal until all their prior convictions are ripe for sealing. Learn more about Nevada record seals.

6. Related offenses

6.1. Interfering with a public officer (NRS 197.090)

Interfering with a government officer is keeping a government officer from performing his/her legal duties by the use of force, violence or threats. This is a gross misdemeanor, carrying:

• up to 364 days in jail, and/or
• up to $2,000 in fines

6.2. Resisting arrest (NRS 199.280)

Resisting arrest happens when a person hinders law enforcement from carrying out legal duties, such as making an arrest. Resisting with no weapons is a misdemeanor, carrying:

• up to 6 months in jail, and/or
• up to $1,000 in fines

But resisting becomes a felony if the defendant had guns or other weapons.

6.3. Evading police (NRS 484B.550)

Evading police under NRS 484B.550 happens when someone deliberately continues to drive after police have signaled for the driver to stop by flashing the red light and sounding the siren. It is usually prosecuted as a misdemeanor, carrying:

• up to 6 months in jail, and/or
• up to $1,000 in fines

Note that evading is a felony if the driver was driving dangerously, was DUI, or caused injury or death. Learn more in our article on evading police and causing injury.

6.4. Obstructing a public officer (NRS 197.190)

Obstruction of a public officer happens when someone lies to, hinders, or withholds information from a public officer. This is charged as a misdemeanor, carrying up to:

• 6 months in jail, and/or
• $1,000 in fines

6.5. Furnishing phones to prisoners (NRS 212.165)

Furnishing a state prison inmate with a telecommunications device is a category E felony, carrying probation and a suspended sentence. (But if the defendant has two or more prior felony convictions, the court may impose one to four years in Nevada State Prison and up to $5,000 in fines.)

Learn more about giving phones to prisoners.

6.6. Furnishing weapons, intoxicants or drugs to state prisoners (NRS 212.160)

Giving a state prison inmate alcohol is a gross misdemeanor. The sentence carries:

• up to 364 days in jail, and/or
• up to $2,000 in fines

Meanwhile, giving a state prison inmate controlled substances or deadly weapons is a category B felony. The sentence carries:

• 1 to 6 years in prison, and
• up to $5,000 in fines (at the judge’s discretion)

Learn more about giving alcohol, drugs, or weapons to prisoners.

6.7. Prohibited items for prisoners (NRS 212.160; NRS 212.165; NRS 212.180)

Prisoners found in possession of drugs or a phone face prosecution for a category D felony. The sentence includes:

• 1 to 4 years in prison, and
• up to $5,000 in fines (at the judge’s discretion)

Prisoners found in possession of a weapon face prosecution for a category B felony, carrying one to six (1 – 6) years in prison.

Note that inmates usually serve sentences for having a prohibited item “consecutively” with the sentences they are currently serving. Also note that courts are usually not allowed to grant probation or suspended sentences in these cases.

Learn more about prisoners possessing prohibited items.

Call a Nevada criminal defense attorney…

If you are facing criminal charges in Nevada, call our Las Vegas criminal defense attorneys for guidance and help. Our goal is to try to get your charges reduced or dismissed. But if necessary, we will take your matter all the way to trial in the zealous pursuit of a “not guilty” verdict.

We represent clients all throughout Nevada, from Las Vegas to Reno.

In California? See our article on the Penal Code 4550 PC.

In Colorado? See our articles on escaping police custody and attempting to escape from jail or prison.

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