Battery is a very common charge in Las Vegas. Sometimes it is just a simple misdemeanor and other times it is a very serious felony. As you will see, the exact punishment a person faces and the possible defenses available to him depend entirely on the particular facts of the situation. Please read on for more information.
The Nevada Revised Statutes define battery as "any willful and unlawful use of force or violence upon the person of another" (N.R.S. 200.481.1(a)). There are three important terms to pay attention to within that definition, which are discussed in greater detail below.
The term "willful" requires that a person specifically intend to commit the battery. Another way of phrasing it would be to say that the person was acting intentionally. A person who accidentally makes physical contact with another person would not be acting in a willful manner and thus would not have committed a battery. The same would hold true for a person who was unconscious when he made physical contact with another person. So, for example, if a person who is having a seizure hits someone else during the course of his seizure, that contact would not be considered a battery because the person wasn't conscious at the time and therefore he was not acting willfully.
The term "unlawful" means that the person did not have the legal right or authority to make physical contact with the other person. This part of the definition exists to protect people like police officers from being charged with battery while performing their duties in a legally prescribed manner. However, this does not mean that any physical contact by a police officer is per se lawful. Whether the physical contact was or was not lawful would depend on the particular circumstances of the situation.
Finally, there is the important and sometimes confusing term of "use of force or violence". Most people instinctively understand that a battery involves some form of violence, but what kind of behavior would qualify as a "use of force"?
For example, would spitting in a person's face be considered a use of force? Spit isn't likely to cause any injuries to a person other than his wounded pride and how much force are you really using when you spit anyway?
What about slipping a drug like Rohypnol (commonly referred to as the "date rape drug") into someone's drink without her knowledge? There isn't any direct physical contact, so how could there be a use of force?
The answer to both of these questions is YES. The conduct in both examples would be considered battery. This is due in part to the fact that Nevada courts have chosen to interpret the definition of battery broadly, which means that many different types of conduct could potentially qualify as battery.
The potential penalty a person will face for a battery conviction depends on whether the battery was considered "simple" or whether it involved one or more aggravating factors that would result in a greater punishment. Below we define the term "simple battery" and explain these aggravating factors in greater detail.
What is often referred to as a "simple battery" is really just a battery that does not (1) result in substantial bodily harm; (2) involve strangulation; (3) involve the use of a deadly weapon; or (4) involve a protected person. A simple battery is a misdemeanor offense and is punishable by up to six months in jail and up to a $1,000 fine (N.R.S. 200.481.2(a) and N.R.S. 193.150).
When substantial bodily harm occurs as the result of a battery or when a person strangles another person during the commission of a battery, then that person will be charged with a category C felony. Category C felonies carry a punishment of a minimum of 1 year and maximum of 5 years in state prison as well as a fine of up to $10,000 (N.R.S. 200.481.2(b)).
When a person commits a battery with the use of a deadly weapon but the battery does not involve strangulation or result in substantial bodily harm, he will be charged with a category B felony and will be facing a potential punishment of a minimum prison term of 2 years and maximum term of 10 years as well as a possible fine of up to $10,000 (N.R.S. 200.481.2(e)(1)).
When a person commits a battery with the use of a deadly weapon and the battery also involves strangulation or results in substantial bodily harm, he will be charged with a category B felony and will be facing a potential punishment of a minimum prison term of 2 years and maximum term of 15 years as well as a possible fine of up to $10,000 (N.R.S. 200.481.2(e)(2)).
In Nevada, certain people are deemed "protected" by statute. So what exactly does that mean? Simply put, this means that a greater penalty is imposed when someone commits a battery against one of these protected persons. So who exactly is considered "protected" and what is the difference in punishment? Both questions are discussed in greater detail below.
Who is Considered "Protected"?
The list of protected persons is as follows:
In addition to having one of the above job titles, the person must have also been performing his job duties when he was battered in order for this greater penalty to apply. So if, for example, an off-duty police officer got punched in the face while out drinking at a bar with friends, he would not be considered a protected person and the person who punched him would only be charged with a simple battery unless substantial bodily harm resulted from the punch. Why is this? He is a police officer after all, which clearly falls under the "Officer" category of protected persons. The reason why he would not be considered a protected person is because he was not on duty as a police officer when he was punched in the face. Instead he was off duty and out drinking at a bar with friends.
In addition to the requirement that the person must have been performing his job duties when the battery occurred, there is one final requirement imposed by statute in order for a person to be considered "protected". The final requirement is that the person who committed the battery must have known or should have known that the person he was battering was either an officer, health care provider, school employee, taxicab driver, transit operator or sports official.
So if in the example above the police officer was not off duty but instead was on duty at the bar looking for underage drinkers and was punched in the face, would he be considered protected? That is a slightly trickier question, but the short answer is that it depends on the particular circumstances. An experienced criminal defense attorney would look for specific facts such as whether the police officer was in plain clothes or whether he was wearing a uniform; and, if the officer was not in uniform, whether the officer ever announced that he was in fact a police officer or showed his badge. If he did announce that he was an officer or show his badge, did he do so in front of the defendant in a loud enough voice so that he could easily be heard? What if he announced that he was an officer but he did so with his back turned to the defendant and the defendant was deaf or hard of hearing?
As you can see, there are many arguments that could be raised depending on the specific facts and circumstances surrounding a particular case. An experienced criminal defense attorney will be able to quickly spot these issues and use them to get you the best results possible.
Punishment for an Otherwise Simple Battery on a Protected Person
When a person knowingly commits what would otherwise be considered a simple battery against a protected person, the offense is charged as a gross misdemeanor and is punishable by up to 364 days in jail and a fine of up to $2,000 (N.R.S. 200.481.2(d) and N.R.S. 193.140).
Punishment for a Battery on a Protected Person Involving Substantial Bodily Harm or Strangulation
When a person knowingly commits a battery against a protected person that involves either substantial bodily harm or strangulation, he will be charged with a category B felony and will be facing a potential punishment of a minimum prison term of 2 years and maximum term of 10 years as well as a possible fine of up to $10,000 (N.R.S. 200.481.2(c)(3)).
Punishment for a Battery by a Prisoner or Probationer without Use of a Deadly Weapon
When a person commits a battery against a protected person while he is in lawful custody but does not use a deadly weapon, he will be charged with a category B felony and will be facing a potential punishment of a minimum prison term of 2 years and maximum term of 10 years. It does not matter here whether the battery involved strangulation or resulted in substantial bodily harm (N.R.S. 200.481.2(f)).
Punishment for a Battery by a Prisoner or Probationer with Use of a Deadly Weapon that Does Not Involve Strangulation or Result in Substantial Bodily Harm
When a person commits a battery against a protected person while he is in lawful custody and he uses a deadly weapon but the battery does not involve strangulation or result in substantial bodily harm, he will be charged with a category B felony and will be facing a potential punishment of a minimum prison term of 2 years and maximum term of 10 years (N.R.S. 200.481.2(g)(1)).
Punishment for a Battery by a Prisoner on a Protected Person with Use of a Deadly Weapon that Involves Strangulation or Results in Substantial Bodily Harm
When a person commits a battery with use of a deadly weapon against a protected person while he is in lawful custody and the battery involves strangulation or results in substantial bodily harm, he will be charged with a category B felony and will be facing a potential punishment of a minimum prison term of 2 years and maximum term of 15 years (N.R.S. 200.481.2(g)(2)).
There are several potential defenses to a charge of battery, but self-defense is one of the most common. This defense involves the basic concept that a person has the legal right to defend himself from an oncoming attack, which sounds simple enough. However, the actual application of this defense is more nuanced and complicated, which is why it is important to have an attorney who is knows how to properly argue this defense on your behalf.
Somewhat related to concept of self-defense is the defense that the supposed victim consented to the battery. If this defense didn't exist, then a UFC fighter would be guilty of a battery each and every time he stepped into the octagon. Even football or basketball players could be charged. The end result of applying the law in such a rigid and mindless fashion would be utter absurdity. So clearly the law has to allow for circumstances where both parties mutually agree to engage in conduct that would technically be considered a battery. That being said, consent is not an absolute defense, which is why it is so important to have an attorney who is familiar with the case law on this subject.
Another common defense to the charge of battery is that the accused had no actual intent to commit the battery. This would involve a situation where the contact was accidental in nature or where the person was not conscious at the time he made contact with the victim. Again this defense may sound simple on its face, but it is oftentimes rather difficult to convince prosecutors or judges that a battery was not intentional because it is a story they have heard time and time again. Mounting this type of defense may involve tasks such as obtaining medical records and hiring an expert witness who will testify about a person's particular medical condition or the side effects of certain medications. Every situation is different and will require a somewhat varied approach. The right attorney will be able to determine the best course of action for your particular circumstances.
We have represented many people charged with battery in Las Vegas and throughout Southern Nevada and have the experience needed to know how best to defend such a case. It is important to have someone on your side who will be your advocate and help you to navigate through the judicial system. Please call us today for a free consultation so that we can discuss the particular facts of your case and get you the most favorable result possible.
By Jenny Pandullo