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ASSAULT WITH A DEADLY WEAPON

Every year hundreds of Las Vegas locals and visitors from all over the world are arrested and face prosecution for the criminal charge of assault with a deadly weapon. Sometimes called "aggravated assault," this is a felony offense that can result in serious criminal penalties, including the loss of civil rights, a permanent criminal record, and even incarceration in prison. But don't panic! If you have been charged with assault with a deadly weapon, the right defense can make a big difference and help you avoid any lasting criminal consequences.

Criminal prosecution is overwhelming. If you know someone who has been arrested and is in Clark County Detention Center or if you yourself were arrested, bailed out, and now have a return hearing date coming up in Las Vegas Justice Court, you are almost certainly experiencing anxiety, depression, or both—especially if you've never been in any legal trouble before. You don't know what is going to happen or what you should do and you don't have anyone to turn to for answers. But I can help. I don't know your exact situation, but I am an experienced Martindale-Hubbell AV Peer Review Rated criminal defense attorney who has successfully represented numerous men and women accused of assault with a deadly weapon, and I've written this article to answer your basic questions and hopefully reduce some of the "fear of the unknown" that you are now experiencing. So read below about the charge of assault with a deadly weapon (sometimes abbreviated "AWDW"). I will cover the definition of this crime, explaining what assault is and what a deadly weapon is under Nevada Law, then I'll explain the possible penalties for conviction, and finally go over common defenses that could apply to your case and explain how a criminal defense attorney like me can help you.

WHAT IS ASSAULT WITH A DEADLY WEAPON?

This seems like it should be a pretty straightforward crime, so why go over the definition? Two reasons. First, like most people, you probably confuse assault with battery and don't know the actual difference. And you probably don't understand the "apprehension" or "immediacy" elements of an assault. So we'll clear that up by reviewing the definition of assault. Second, you probably aren't informed about what counts as a "deadly weapon" under Nevada law. You might be surprised.

ASSAULT DEFINED

Assault is defined by state law and applies to acts committed in Las Vegas and everywhere else in Nevada. The specific law that defines assault is NRS 200.471. This statute provides two definitions for assault. Specifically, according to NRS 200.471, "assault" means either: (1) Unlawfully attempting to use physical force against another person; or (2) Intentionally placing another person in reasonable apprehension of immediate bodily harm. Not the most complicated definitions but let's break them down.

Assault versus Battery. Distinguishing assault from battery is the easiest way to learn the definitions of both terms. The first definition of assault under NRS 200.471 says assault is attempting to use physical force on a person. Using physical force on someone is a battery. So assault is just an attempted battery. Examples of battery include punching, slapping, kicking, pushing, or hitting someone with an object—all of those are acts of battery. Assault, on the other hand, is trying but failing to do any of those things. So trying to punch someone but missing is an assault.

Under the second definition, an assault is doing anything that makes a person think he's about to be battered. This definition is sometimes called "menacing conduct." Trying to punch someone but not connecting would be an assault under this second definition—but only if the victim sees the punch coming. If the victim has his head turned and doesn't see the punch coming, then the victim couldn't be in fear of an immediate battery. But a missed "suckerpunch" is still be an assault under the first definition because it's an attempted battery. So very simply, assault means trying to hit someone or making him/her think you're about to hit him/her. Assault isn't actually hitting a person. Actually hitting someone is a battery. So assault is scaring a person, whereas battery is actually hitting a person. To sum up, battery is hitting a person whereas assault is trying to hit a person and/or making that person fear that you will hit him/her.

But why two different definitions under Nevada law? What's the difference between an attempted battery and making someone fear immediate bodily harm? If you think about it, you will probably realize that in most cases where a person could justifiably be charged with assault, both definitions will apply. For example, if you throw a rock at a guy's head and he ducks, you were attempting a battery and he feared immediate bodily harm (which is why he ducked). So both definitions apply. But there are situations where one definition might apply but the other one doesn't.

Attempt Battery (but No Fear of Immediate Bodily Harm). The missed suckerpunch example I used above is a good example of a situation where a person is guilty of assault as an attempt battery but not as an act causing fear of immediate bodily harm. To review, you try to punch a guy and miss. You're trying to hit this person in the face so it's obviously an attempt battery. But the victim never sees the punch coming so he wasn't in fear of immediate bodily harm. What about the opposite situation?

Fear of Immediate Bodily Harm (but no Attempt Battery). Can you make a person fear immediate bodily harm without attempting to commit a battery? Yes. That occurs when you don't actually want to hit the victim, just scare him. So if you wind up and punch a wall right by someone's head, not wanting to actually connect with the punch (but making the victim think that he's going to get hit) then you've committed an assault under the second definition but not the first. This second situation is probably more common in real life criminal cases, at least from my experience. One example I see pretty regularly: shooting a gun at someone while intending to miss. You weren't trying to shoot the victim but he reasonably feared that he was going to be shot.

So that's why there are two definitions. Sometimes only one of the two definitions applies, but legislators, the people who pass laws, think both situations shouldn't be allowed in society and should be punished under criminal law.

Apprehension. I use "fear" in place of "apprehension" above when talking about the definition of assault, but technically that's not correct under Nevada law. Victims do generally "fear" injury when someone attacks them, but fear is not an essential element of assault. For example, if you fire a gun at the victim. The victim believes that he's Superman and therefore invulnerable to gunfire. So he doesn't fear being shot because he doesn't believe he can be harmed. Is this a defense for a potential assault charge? No. Under Nevada law, fear is different than "apprehension" which is the word Nevada's assault statute actually uses. So what is "apprehension"?

Dictionary Definitions: Fear versus Perception. If you Google "apprehension" you get two definitions. The first definition of apprehension is "anxiety or fear that something bad or unpleasant will happen." This is the primary definition of apprehension what most people are going to think of when they hear the word. The secondary dictionary definition of "apprehension" is "understanding, grasp." This definition removes the element of fear and does not require that the perceived outcome be "bad." So basically, it just means perceiving something. Perception is experiencing something by sensing it, through seeing, hearing, touching, tasting, and smelling.

So what? These two definitions are important because when the law defines assault as "apprehension" of immediate bodily harm, the law is talking about the second definition, not the first. Primary definition apprehension (fear) is not required. The secondary definition, in the context of the crime of assault, means that the victim perceives that a battery is going to happen. The victim might fear the battery (and probably does), but it's not a necessary element. All that is required is the perception that a battery will occur.

So this distinction may be important in the defense of an assault charge. If you're charged with assault, it's not going to be a good defense to say that the victim wasn't actually afraid. However, it still could be a defense to say the victim did not actually believe that a battery would occur (although, in this latter case, you would still have to defend against the first definition of assault and argue that you never actually attempted to batter the victim).

Immediate Bodily Harm. Remember, there are two definitions of assault: (1) attempted battery and (2) making someone perceive an "immediate" battery. Immediate in this context means that the victim must perceive that the battery is going to or could happen very quickly. Imminently. Easy examples would be a bullet or a punch whizzing by a person's head. But what exactly separates a "future threat" from an "immediate threat"? Is it a simple matter of time? Not exactly. You should know one thing about the element of "immediacy": while future threats aren't assault, a threat with the present ability to carry out that threat is assault. I'll explain this in the next two paragraphs.

Again, future threats are not assault, so if you threaten someone over the phone and say you're going to punch him in the face when you see him next week, that's not assault. That sort of future threat could be some other crime, like stalking, but it isn't assault.

On the other hand, if you're in the same room with someone and you make a "threat to inflict injury," it could be assault, so long as you have "apparent present ability" to make good on the threat. This situation has been fleshed out in cases that have been appealed to the Nevada Supreme Court, which has ruled that a suspect in police custody commits assault against police officers if he threatens them with physical violence and could hypothetically attack the cops with a "deadly weapon." In practical terms, this means you basically have to be in the same room as the alleged victim and have access to some deadly weapon. Read below to learn about what counts as a "deadly weapon."

WHAT IS A DEADLY WEAPON?

Nevada's legal definition of "deadly weapon" is NRS 193.165. You can click the link if you want to read the whole definition, but basically there are three categories of items that are "deadly weapons." I've written about these categories in other articles on this site, like on my pages explaining concealed weapons and felony domestic violence. But one of the three definitions of "deadly weapon" is more general than the other two, so that is really the only one you need to know. What is that definition?

According to NRS 193.165(6)(b), a deadly weapon is: "[a]ny weapon, device, instrument, material or substance which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing substantial bodily harm or death." So a deadly weapon is anything used like a deadly weapon, which makes this definition completely circular and not very helpful at all.

One thing to keep in mind, though, is that a deadly weapon doesn't actually need to be deadly (i.e., capable of killing a person). It just has to be capable of causing "substantial bodily harm." This would seem to broaden the definition of deadly weapon somewhat, although most items capable of causing substantial bodily harm can also cause death (e.g., guns, knives, baseball bats, large rocks, etc.). But there are some objects or devices that could cause substantial bodily harm but probably couldn't kill a person. Examples of this include pellet or BB guns, which can put an eye out (substantial bodily harm) but probably couldn't kill a person. And indeed, pellet guns are "deadly weapons" under Nevada law!

I don't think the statutory definition of "deadly weapon" is very helpful if you're trying to understand this particular charge. I think it might be more informative to see a list of common "deadly weapons." Here is a list of items/weapons/devices/instruments commonly charged as deadly weapons:

  • Guns. Firearms are inherently deadly weapons because they're designed to cause substantial bodily harm. Many AWDW charges are based on allegations that the defendant pointed a gun at someone. But keep in mind, even if the gun isn't pointed at the victim, if you have a gun in your possession and threaten someone, that could be charged as AWDW as well since you have "apparent present ability" to make good on the threat with your gun. If you go beyond pointing a gun and/or making threats, you could find yourself charged with attempt murder. Finally, as I mentioned above, even BB guns count as firearms and are therefore, under the law, "deadly weapons," based on a case the Nevada Supreme Court heard in 2009 called Funderburk v. State.
  • Knives. Knives are another type of deadly weapon commonly found in AWDW charges filed by prosecutors in Las Vegas. I've seen cases with all sorts of knives, from hunting knives to box cutters to kitchen knives to letter openers. Some knives are purposefully deadly weapons, whereas others are meant to open boxes or spread butter. You may think it's silly that a butter knife could possibly be charged as a deadly weapon, but I've seen it happen.
  • Cars. This is one that surprises people, but I see cars and other automobiles as deadly weapons fairly frequently in complaints filed by the Clark County District Attorney. Basically the allegation is that the defendant tried to run over the victim. Many times the defendant was actually just trying to leave the scene and the "victim" got in the way of the vehicle.
  • Furniture. You probably think I mean a chair or something similar, wielded like a club. I've definitely seen AWDW charges like that, but I've also seen furniture as a "deadly weapon" when the defendant didn't even pick it up. Specifically, I had a case where someone was charged with using a deadly weapon by pushing another person up against a bed frame in a way that could have restricted breathing. That was a battery case, not an assault case, but it just goes to show how broadly the definition of "deadly weapon" can be interpreted. The bottom line is, just about anything can be a deadly weapon.

POTENTIAL PUNISHMENT

Simple assault is just a misdemeanor, but assault with a deadly weapon is a category B felony, punishable by 1 to 6 years in the Nevada Department of Corrections, probationable. If you're like most people, you're either going to be confused by that last sentence or you're going to misinterpret it. So let me explain.

The prison term of 1 to 6 years is only if you're convicted of the charge. A conviction means you go to trial and lose or plead guilty (maybe because you were charged with a more serious offense and pled to AWDW as part of a plea deal). So if you're convicted of AWDW, the potential prison sentence, per statute, is 1 to 6 years. But what does that mean?

First, when we talk about "the Nevada Department of Corrections" we're talking about the state prison system. Prison is different than jail. Jail is where you are held temporarily pending the outcome of your case or for shorter terms of incarceration on more minor cases. Prison is for longer stays. There are several prison facilities located throughout Nevada, but for people convicted of crimes in Las Vegas the two most common facilities are Southern Desert Correctional Center and High Desert State Prison, which are both located north of Las Vegas headed up 95 going toward Mount Charleston.

In Nevada, a sentencing judge sentences you to two numbers: a lower bottom number and a higher top number, and the judge can't make the bottom number any larger than 40% of the top number. The bottom number is the minimum time that must be served before an inmate becomes eligible for release on parole, and the top number is the amount of time that has to be served if an inmate doesn't get paroled and has to "expire" his sentence.

So for AWDW the minimum sentence is 1 to 2.5 years (12 to 30 months) and the maximum would be 2.4 to 6 years (28 to 72 months). Any sentence in between is allowable so long as the bottom number doesn't exceed 40% of the top number. One common sentence for AWDW is 2 to 5 years (24 to 60 months). But don't get confused, not everyone who is convicted of AWDW goes to prison.

AWDW is a probationable offense, meaning that instead of sending the defendant to prison the sentencing judge can suspend the prison sentence and place the defendant on a period of probation with the prison sentence hanging over his head. A term of probation is a period of supervision by the Department of Parole and Probation. The judge determines the terms of your probation, although certain standard conditions apply, such as keeping in contact with a probation officer, avoiding contact with known felons, keeping a job, and staying out of trouble. Violating the terms of probation can result in revocation of probation and the imposition of the underlying prison sentence.

By statute, the probationary term for AWDW can be up to 5 years. A term of probation may be fixed or indeterminate. A fixed term means probation lasts for that specific time period whereas an indeterminate period means the term can't be longer but may be shorter. Probably the most common term of probation for AWDW is 3 years indeterminate. But even if you're sentenced to a maximum term of 5 years fixed probation, you can always file a motion to be released early from probation.

By statute, a conviction for assault with a deadly weapon can also carry a fine of $5,000 maximum, but fines are rarely imposed for AWDW convictions. Fines aren't frequently imposed for felonies, period. It may seem backwards, but in Las Vegas, you're much more likely to pay fines for misdemeanors like domestic violence than for felonies like AWDW.

Don't confuse fines with restitution. Fines are intended to serve as punishment and you pay the State of Nevada (who is the "plaintiff" in a felony criminal case). Restitution, on the other hand, is paid to the victim based on damages suffered for the defendant's criminal conduct. Frequently this includes out-of-pocket medical expenses. While fines are uncommon for felonies, restitution is mandatory. That said, assault is associated with fear of injury, not actual injury (that's battery), so restitution in assault cases is not common.

So what can you expect if you're going to be sentenced for AWDW? Assault with a deadly weapon is a "crime of violence" so there is substantial risk of prison. Whether you get probation or what your sentence might be depends on many factors. But here are the most important ones:

  • The facts of the case. The more serious or dangerous the conduct, the more likely you are to get a prison term. If injury was narrowly avoided or if death was possible, you are less likely to get probation. Same situation if firearms were used. You are more likely to get probation if you have some decent reason that mitigates your conduct, even if your explanation doesn't rise to the level of a legal defense to the crime. Judges may say they don't want to hear "excuses," but a good excuse may help you avoid prison time whereas having no excuse makes you look like a sociopath who hasn't fully reflected upon his conduct.
  • Your record. If you have no record you're more likely to get probation. Simple. Prior convictions for other crimes of violence, even misdemeanors, increases the odds of prison sharply. But in AWDW even first time offenders sometimes get sent to prison.
  • Your judge. A District Court Judge will decide whether you go to prison or get probation. There are several District Court Judges with criminal calendars in Las Vegas, and some are more likely than others to impose a prison sentence. A criminal defense attorney can tell you more about this, so ask.

DEFENDING ASSAULT WITH A DEADLY WEAPON CHARGES

I have defended numerous men and women charged with assault with a deadly weapon in Las Vegas. I have helped many people charged with this crime avoid prison sentences and felony convictions. Here is my approach to defending AWDW charges, one step at a time.

When I get involved in an AWDW case, it's usually after arrest. But sometimes I get calls on AWDW cases when police are still investigating an alleged crime and the "suspect" is getting calls or unwelcome house visits from Las Vegas Metro detectives. If this is your situation and you contact me, I may talk to the detective but I won't say much. And neither will the detective. They don't want you to know what they know. There are exceptions to every rule, but I don't sit down with my clients while cops interrogate them.

If police have gathered enough evidence to get you charged, you might even have an outstanding arrest warrant. In that case, an attorney can place your matter on calendar to get the warrant called or get an "own recognizance walk-through," or at least get a reasonable bail set. Read my article on arrest warrants for more information.

If you're here about an AWDW arrest and the defendant is still in jail, you probably want information about bail or how to otherwise get your loved one released. Standard bail for assault with a deadly weapon is $20,000. That means if someone is arrested and thrown into jail he can bail out at $20,000 or he has to wait until the 72 hour hearing when the judge might adjust the bail. Read some of my articles about bail for more information.

If you or your loved one already bailed out, we should talk about substantive legal defenses for assault with a deadly weapon. Here are some common defenses:

  • Self defense. If you're defending yourself or someone else from a physical attack, you can use threats to repel the attack. Whether your response counts as valid self defense depends on whether it's "reasonable," which would ultimately be a question for the jury if your case goes to trial.
  • Lack of intent. If you didn't intend to commit a battery or scare the alleged victim then you didn't commit assault. This defense comes up in automobile AWDW cases a lot.
  • No reasonable apprehension. If no reasonable person would have perceived that a battery was about to occur, you're not guilty.
  • No deadly weapon. Guns and knives are deadly weapons, sure. So is a pillowcase with a brick in it if you swing it at someone's head. But if it's a pillow in the pillow case you're not guilty of AWDW. Many other alleged "deadly weapons" are debatable.
  • False accusation. False accusations occur more often than you might think, for all sorts of reasons or no good reason at all. Many times a false AWDW accusation will arise out of child custody case or a bad breakup. Proving an accusation false can be difficult, but may involve pointing out inconsistencies between various witness statements, questioning the credibility of the accuser, and bringing to the forefront the biases and motives to lie that certain witnesses may have.
  • Mistaken identity. Common scenario: Someone pulls out a gun and aims it at a bunch of people in a poorly lit club. Cops ask around and a name comes up. But eyewitness testimony is notoriously unreliable, and the cops get the wrong guy more often than you'd like to think.
  • No proof beyond a reasonable doubt. It's the state's burden to present legal evidence and prove the case against a defendant beyond a reasonable doubt. If the state doesn't meet that burden, the defendant goes free. Evidence for an AWDW charge may take many forms, but is nearly always based on the testimony of witnesses. Even if these witnesses show up to court, they might not be able to testify credibly to meet the state's burden.

The above are substantive trial defenses. Just as no two cases are exactly alike factually, no two defenses are quite the same. But generally, at trial, your defense may be based on questioning the credibility of the state's witnesses and presenting the testimony of favorable witnesses as well as your own testimony. Many AWDW charges are truly a "he said, she said" situation, and if your defense raises reasonable doubt, you are entitled to acquittal. If you are charged with assault with a deadly weapon, you have to be prepared for the possibility of trial by jury. But statistically, that outcome is not very likely, as about 99% of criminal cases don't go to trial. The vast majority of AWDW cases end in plea negotiations.

Negotiations are complicated, but generally speaking, getting the best negotiated outcome possible is based primarily on presenting to the District Attorney the strongest defense possible, and making the prosecutor doubt whether a conviction is a surety if the case goes to trial. But even if the evidence against you is strong, it may be possible to negotiate an assault with deadly weapon charge favorably. "Favorable" is a relative term, so whether that means avoiding prison time, dropping the charge to a non-felony, or something better will vary. But very favorable negotiations are possible, and it may even be possible to negotiate an outcome where you have nothing on your record and the charge ends up dismissed.

Whether you yourself or someone you care about has been charged with assault with a deadly weapon, I hope reading this page has eased your stress somewhat. Just remember, you have to take things like this one step at a time. The next step is talking to a criminal defense attorney. I have achieved favorable results for many men and women charged with assault with a deadly weapon in Las Vegas, and I would be happy to talk to you about your case and discuss what kind of an outcome I believe we might be able to achieve if I am your lawyer. I offer free consultations and the number listed here is my personal cellular phone number. Call or text me right now or send an email if you prefer.

By Michael Pandullo


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