Battery domestic violence is ordinarily a misdemeanor, but in some cases, an alleged domestic violence incident can lead to felony charges and mandatory prison if the defendant is convicted. If you have been charged with felony domestic violence in Las Vegas or anywhere else in Clark County, Nevada, read through this page and give me a call to discuss your case.
Below are the most common ways a domestic violence charge becomes a felony and the potential punishment you face if convicted.
If you have been convicted of battery domestic violence twice in the past seven years, any subsequent charge for domestic violence is a felony, punishable by 1 to 5 years in a Nevada prison. And unlike most other charges, if you are convicted of felony domestic violence, the judge cannot suspend the sentence and place you on probation. Prison is mandatory. This means that if you are convicted of domestic violence third offense, you must do a year in prison before you become eligible for parole.
A third offense still triggers felony treatment even if your second offense was plead down to a first offense for the purpose of punishment. But keep in mind, this only applies to domestic violence convictions. If you were charged with a second domestic violence, but the charge was dismissed or plead down to a simple battery, disorderly conduct, or any charge other than battery constituting domestic violence, third offense felony treatment will not be triggered.
If you are in a domestic relationship with someone, and are accused of choking that person, you will likely be charged with battery domestic violence strangulation. But what is strangulation?
Nevada law defines strangulation as "intentionally impeding the normal breathing or circulation of the blood by applying pressure on the throat or neck or by blocking the nose or mouth of another person in a manner that creates a risk of death or substantial bodily harm."
Let's break down this definition. There are two types of chokes. Blood chokes and air chokes. Air chokes restrict breathing through compressing the windpipe. Blood chokes occur when the carotid arteries on the sides of a person's neck are compressed, which interrupts blood flow to the brain. Both types of chokes can lead to unconsciousness and eventually death. However, blood chokes can cause unconsciousness within seconds, whereas air chokes take significantly longer to work. To illustrate the difference, think of how long you can hold your breath without passing out, then compare that to how quickly a choke in mixed martial arts leads to a tapout submission.
In reality, it is debatable whether many of the alleged chokes charged ass domestic violence strangulation actually create "a risk of death or substantial bodily harm." If you have any experience in grappling or any interest in mixed martial arts, you probably know that a person begins to regain consciousness immediately when a blood choke is released. However, if the alleged victim claims that she was near unconsciousness, however briefly, the district attorney will almost certainly file the case as a felony domestic violence strangulation.
Battery domestic violence strangulation is a felony punishable by 1 to 5 years in prison. Like third offense domestic violence, the judge is not allowed to grant probation if you are convicted of this offense. This means that if you don't beat the case or plead to a lesser offense, you'll do a minimum of one year in prison before you become eligible for parole. Additionally, there is a mandatory fine of $15,000 if you are convicted.
A simple push is enough for a misdemeanor conviction for domestic violence. However, if the domestic battery allegedly results in "substantial bodily harm," the case will be charged as a felony.
"Substantial bodily harm" is defined by Nevada law under NRS 0.060. It can be either (1) "[b]odily injury which creates a substantial risk of death or which causes serious, permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ" or (2) "[p]rolonged physical pain." In practice, "substantial bodily harm" usually means that the alleged victim broke a bone, or was cut deeply enough to leave a scar. Regular scrapes, bumps, and bruises do not ordinarily count as substantial bodily harm.
Battery domestic violence with substantial bodily harm is a non-probationable felony, punishable by 1 to 5 years in prison and a mandatory $10,000 fine. Note that if a "deadly weapon" is used to cause the substantial bodily harm, the sentence is increased to 1 to 15 years in a Nevada prison.
A domestic battery committed with the use of a "deadly weapon" is a felony. What counts as a deadly weapon and triggers felony domestic violence treatment?
Pursuant to NRS 193.165, a "deadly weapon" is "[a]ny instrument which, if used in the ordinary manner contemplated by its design and construction, will or is likely to cause substantial bodily harm or death." A deadly weapon is also "[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 the deadly weapon definition is tied to the definition of "substantial bodily harm." A deadly weapon could be something that is designed to cause substantial bodily harm, like a gun or knife. But a deadly weapon can also be any object that is used in a way that can cause substantial bodily harm. Examples of this type of "deadly weapon" might include a heavy candlestick, or even a piece of bed frame if the alleged victim's neck is pushed against it.
A conviction for battery domestic violence with use of a deadly weapon carries a non-probationable sentence of 2 to 10 years in a Nevada state prison and a mandatory fine of $10,000. However, if the alleged victim suffers substantial bodily harm as a result, the prison sentence is increased to 2 to 15 years.
Unlike misdemeanor domestic violence charges, which are tried in front of a judge, felony domestic violence charges are tried in front of a jury. I have handled many felony domestic violence cases, by successfully pleading them down to misdemeanors or probation, seeing that the cases are dismissed, or going to trial and winning a full "not guilty" verdict from the jury. So if you have been charged with felony domestic violence, call me now to talk about your case.
By Michael Pandullo