Assault with a Deadly Weapon – Las Vegas Nevada Law – NRS § 200.471(2)(b)

Nevada law makes it a category B felony to commit assault with a deadly weapon (ADW). No physical contact or injury is required for a conviction under Nevada Revised Statute § 200.471(2)(b).

Penalties

• Nevada State Prison:  1 to 6 years
• Fines:  $5,000 (at the court’s discretion)

However, it may be possible to get probation instead or to plea bargain the charge down to a misdemeanor or dismissal.

Elements

1. Assault:  The defendant attempts to use unlawful physical force on a person or intentionally causes another person to reasonably fear immediate bodily harm.
2. Deadly Weapon:  The assault is accompanied by a gun, knife, or any potentially lethal item such as broken glass, a brick, or a pipe.

It is not necessary for the defendant to hold or brandish the deadly weapon. Simply having the present ability to use a deadly weapon turns simple assault into assault with a deadly weapon.

Defenses

• No Criminal Intent:  Perhaps the incident was an innocent accident.
• No Reasonable Apprehension of Being Hurt:  The alleged victim’s fears were irrational or unfounded under the circumstances.
• Self-Defense:  The defendant was lawfully defending themself or others against imminent death or serious bodily harm.
• Consent:  For example, perhaps the defendant and alleged victim agreed to a fencing match.
• No Deadly Weapon:  The defendant did not possess or use a lethal object during the alleged assault.

From our experience defending felony assault cases throughout Nevada, no two incidents are alike. What begins as a family dispute, road rage encounter, bar fight, or misunderstanding can quickly result in an arrest for assault with a deadly weapon—even when no one was injured.

We know that police reports often tell only part of the story, which is why we immediately look for surveillance video, interview witnesses, analyze self-defense issues, and identify weaknesses in the prosecution’s evidence. In many cases, those early steps are critical to reducing or defeating the charges.

In this article, our Las Vegas criminal defense lawyers will address the following key issues regarding assault with a deadly weapon (ADW):

• 1. Elements of ADW
• 2. Penalties
• 3. Defenses
• 4. Plea Bargains
• 5. Record Seals
• 6. Immigration Consequences
• 7. Related Offenses
• 8. Frequently Asked Questions
• Additional Reading

1. Elements of ADW

For you to be convicted of assault with use of a deadly weapon under NRS 200.471(2)(b), Nevada prosecutors have to prove beyond a reasonable doubt the following two elements:

1. You committed assault, and
2. You used a lethal weapon.¹

We discuss these elements in detail below.

1) “Assault” Meaning

Assault 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, which is a separate Nevada crime.

A common example of assault includes deliberately holding up a fist and lunging at 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 limited circumstances.²

2) “Deadly Weapon” Meaning

As it sounds, deadly weapons comprise devices likely to cause substantial bodily harm. Substantial bodily harm means prolonged physical pain or a bodily injury that:

• creates a substantial risk of death or
• causes serious, permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.

Deadly weapons include not only guns and knives but also everyday objects like pipes, scissors, or bricks that could be used in a deadly way.³

Note that you do not have to injure anyone or even brandish your weapon to be convicted of assault with a deadly weapon. All that matters is that you have the present ability to use the weapon, such as carrying it or keeping it within reach.⁴

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 openly carrying a hunting knife on his belt. Here, Butch could face 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.

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. Penalties

Assault with a deadly weapon is typically a category B felony carrying one to six years in Nevada State Prison and up to $5,000 in fines. However, it may be possible to get probation instead of all or some of the prison sentence.

Common probation terms include house arrest, electronic monitoring, and avoiding alcohol or drugs. Violating probation may result in being remanded to prison to finish the sentence.

Simple Assault

Predictably, assault without a deadly weapon – called “simple assault” – carries lesser penalties. Simple assault is only a misdemeanor carrying up to six months in jail and/or $1,000 in fines.

Note that simple assault becomes a gross misdemeanor charge if the victim is part of a “protected class,” such as a police officer. The sentence is up to 364 days and/or $2,000 in fines.

Finally, simple assault becomes a category D felony if the defendant was an inmate or on probation or parole. The sentence is one to four years in prison and up to $5,000 (at the court’s discretion).⁵

Many clients assume that being charged with assault with a deadly weapon automatically means years in prison. While the offense carries serious felony penalties, Nevada law does not require prison in every case, and probation may be available.

3. Defenses

Here at Las Vegas Defense Group, we have represented literally thousands of people charged with assault, including with use of a deadly weapon. In our experience, the following five defenses have proven very effective with Nevada prosecutors, judges, and juries at getting NRS § 200.471(2)(b) cases reduced or dismissed.

1) You Had No Criminal Intent

Assault is an “intent crime” in Nevada. 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. Though 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.

2) 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 we 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 carry the pistol openly 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.

Note that the physical distance between you and the purported victim can also serve as an ADW defense if you could not have reasonably caused them harm due to the distance.

Example: Jonah is riding his bike when he sideswipes a pedestrian. Jonah keeps biking but a block later looks behind him, where the pedestrian is sitting on the pavement and shaking his Swiss Army Knife at Jonah. Since there is no way Jonah could be harmed by the knife since it is a block away, the pedestrian is not committing assault with a deadly weapon.

3) 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 in protecting 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.

4) The Accuser Consented

This consent defense typically applies in sports, such as boxing or fencing, where physical contact is inherent to the game. If we can show that the accuser somehow consented to be assaulted, then the assault charges will not stand.

Note that Nevada law prohibits duels.⁸

5) 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 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. Though 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

4. Plea Bargains

Depending on the case, we may be able to persuade Nevada prosecutors to reduce an assault with a deadly weapon charge down to:

• Simple assault,¹¹
• Simple battery,¹² or
• Trespass.¹³

All of these offenses are only misdemeanors, which carry up to six months in jail and/or $1,000 (or equivalent community service time).¹⁴

Predictably, it is harder to negotiate favorable plea deals if there were “aggravating circumstances,” such as:

• the victim was a member of a “protected class,” such as police officers, or
• you were in custody or on parole or probation at the time of the assault.¹⁰

5. Record Seals

In Nevada, convictions for assault with a deadly weapon may be sealed 10 years after the case ends. If the charge gets reduced to simple assault, the wait time is only one year after the case ends.¹⁵

Note that if your NRS § 200.471(2)(b) case gets dismissed, you can petition for a Nevada record seal right away.¹⁶

In our opinion, record sealing should be part of the defense strategy from the very beginning—not an afterthought once the case is over. Whether a charge is dismissed, reduced to a misdemeanor, or results in a felony conviction can dramatically change when, or even whether, you become eligible to seal your record. We advise clients about these long-term consequences while negotiating resolutions, not just after sentencing.

6. 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.

In our experience, immigration concerns should be addressed at the very beginning of the case—not after a plea has already been entered. We frequently work with clients to identify dispositions that may better protect their immigration status when the law and the facts allow. Taking the time to consider these consequences early can make a significant difference for clients who are not U.S. citizens.

7. Related Offenses

Using a Deadly Weapon in the Commission of a Crime

When you use or carry a lethal weapon while executing a crime, Nevada courts will increase the sentence by one to 20 years. Note that this added sentence may not exceed the punishment for the underlying crime.

For example, if you are sentenced to seven years in prison for armed robbery, the additional sentence cannot exceed seven years, resulting in 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 is a category B felony, carrying one to six years in prison and up to $5,000 in fines.¹⁹

Brandishing a Firearm

It is a Nevada misdemeanor to draw or wave a gun in a threatening or provocative manner. Brandishing a firearm carries up to six months in jail and/or $1,000.²⁰

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 Nevada felony, carrying one to 15 years in prison.²¹

Frequently Asked Questions

Can I be charged with assault with a deadly weapon for road rage if I never got out of my car?

Yes. If you cut someone off or get into a driving dispute and wave a gun or weapon at them through the window, you can be charged in Nevada. You do not need to exit the vehicle or make physical contact; simply placing the other driver in reasonable fear of immediate bodily harm with a weapon is sufficient for a conviction.

In our experience, road rage cases often happen in a matter of seconds, and there are usually two very different versions of what occurred. Dashcam footage, traffic cameras, eyewitnesses, and 911 recordings can make a tremendous difference in determining whether a weapon was actually displayed or whether the other driver’s account has been exaggerated. We encourage clients to preserve any video evidence as soon as possible before it is deleted.

Is it still assault with a deadly weapon if the gun was not loaded?

Yes. In Nevada, the law focuses on the apprehension (fear) you create in the victim, not just the danger. If the victim reasonably believes the gun is loaded and fears for their safety, you can still be charged with ADW, even if the firearm was unloaded or inoperable at the time.²²

In our experience, people often believe an unloaded firearm means they cannot be charged with a serious felony. Unfortunately, that is not how Nevada law works. What frequently matters most is how the encounter appeared to the alleged victim and what the surrounding evidence—such as witness statements, surveillance footage, and the defendant’s actions—shows about what actually happened.

What is the difference between “Assault with a Deadly Weapon” and “Battery with a Deadly Weapon”?

The main difference is physical contact. In Nevada, assault is the threat or attempt to harm someone (creating fear), while battery is the actual use of force or violence against them. If you swing a bat and miss, it is assault; if you swing and hit them, it becomes battery.

In our experience, prosecutors sometimes file the most serious charge they believe the facts could support, even when the evidence of physical contact is disputed. Carefully reviewing medical records, photographs, body camera footage, and witness accounts can be critical in determining whether the evidence supports battery, assault, or neither offense.

Can I seal my record if I am convicted of ADW?

Yes, but you must wait. Assault with use of a deadly weapon is a category B felony in Nevada. You can generally petition to seal your record 10 years after the case is closed. If your attorney succeeds in getting the charge reduced to a misdemeanor (simple assault), you may be able to seal the record just one year after the case ends.

In our experience, many clients focus only on avoiding jail, but the long-term consequences of a felony record can be just as significant. When possible, we look for opportunities to negotiate a reduction that not only lowers the immediate penalties but may also allow the record to be sealed much sooner, helping clients move forward with employment, housing, and other opportunities.

Can you be convicted of assault with a deadly weapon if no one was injured?

Yes. Nevada’s assault statute does not require that anyone suffer a physical injury. Prosecutors need only prove that you unlawfully attempted to use force with a deadly weapon or intentionally caused another person to reasonably fear immediate bodily harm through the use or present ability to use a deadly weapon.

In our experience, this surprises many clients. People often assume that if the alleged victim walked away unharmed, no felony occurred. We routinely defend cases where the central dispute is not whether someone was injured, but whether the defendant’s actions actually constituted an assault or whether the alleged victim’s fear was objectively reasonable.

What counts as a “deadly weapon” under Nevada law?

A deadly weapon is not limited to firearms. Nevada law includes any instrument that is inherently dangerous, such as a gun or knife, as well as objects that are used in a manner capable of causing substantial bodily harm or death. Depending on how they are used, items such as baseball bats, vehicles, hammers, or even heavy tools may qualify as deadly weapons.

In our experience, many assault cases turn on whether the object legally qualifies as a deadly weapon. Prosecutors often argue that an ordinary object became a deadly weapon because of the way it was allegedly used, while the defense may present evidence that the object was never capable of causing the type of harm alleged.

Does the alleged victim have to testify to convict me?

No. A prosecutor may proceed even if the alleged victim refuses to testify or changes their story. The State can rely on other evidence, such as 911 recordings, surveillance video, body camera footage, eyewitness testimony, text messages, forensic evidence, and the defendant’s own statements.

In our experience, witnesses frequently become less certain as time passes or decide they no longer want to participate. That does not necessarily end the case, but it can significantly affect the strength of the prosecution’s evidence and create opportunities to challenge proof beyond a reasonable doubt.

Is pointing a gun at someone always assault with a deadly weapon?

Not necessarily. Pointing a firearm at another person may constitute assault with a deadly weapon if it unlawfully places the person in reasonable fear of immediate bodily harm or amounts to an unlawful attempt to use force. However, lawful self-defense, defense of others, or other legal justifications may apply depending on the circumstances.

In our experience, these cases often depend on the events leading up to the encounter. Security video, eyewitness accounts, and physical evidence frequently provide a much clearer picture than the initial police report alone.

Can assault with a deadly weapon charges be reduced or dismissed?

Yes. Depending on the evidence, prosecutors may agree to reduce or dismiss assault with a deadly weapon charges. Common reasons include insufficient evidence, unreliable witness testimony, self-defense, mistaken identity, lack of intent, or constitutional violations during the investigation.

In our experience, felony assault cases are often more negotiable than clients initially believe. Early investigation, preserving surveillance footage, interviewing witnesses, and identifying weaknesses in the State’s case can substantially improve the chances of obtaining a favorable resolution.

Can I claim self-defense to assault with a deadly weapon?

Yes. Nevada law allows a person to use reasonable force, including deadly force in appropriate circumstances, when they reasonably believe it is necessary to defend themselves or another person against an imminent threat of death or substantial bodily harm. Once sufficient evidence of self-defense is presented, the prosecution must disprove the defense beyond a reasonable doubt.

In our experience, self-defense cases are rarely decided by a single fact. Investigators often focus on who started the confrontation, whether the threat was truly imminent, and whether the defendant’s response was reasonable under the circumstances.

Will I lose my gun rights if I am convicted of assault with a deadly weapon?

Usually yes. Because assault with a deadly weapon is a felony in Nevada, a conviction generally results in the loss of the right to possess or own firearms under both Nevada and federal law unless those rights are later restored.

In our experience, many clients are most concerned about avoiding a felony conviction because of its long-term consequences. Beyond prison exposure, a felony record can affect firearm rights, employment opportunities, professional licenses, and immigration status.

Can a BB gun or pellet gun be considered a deadly weapon?

Sometimes. Whether a BB gun or pellet gun qualifies as a deadly weapon depends on the particular facts of the case and whether the object was capable of causing substantial bodily harm or death in the manner it was used or intended to be used.

In our experience, prosecutors and defense attorneys often present competing evidence about the capabilities of the object involved. The answer is highly fact-specific and may require expert testimony or detailed evidence about the weapon itself.

Is pulling out a knife enough to be charged with assault with a deadly weapon?

Potentially, yes. If you intentionally display or use a knife in a manner that causes another person to reasonably fear immediate bodily harm, prosecutors may file assault with a deadly weapon charges even if the knife never makes contact with anyone. Whether the evidence actually proves the required elements depends on the specific facts of the case.

From our experience defending these cases, much often turns on witness credibility and the surrounding circumstances. A heated argument alone is not automatically assault, and prosecutors still must prove beyond a reasonable doubt that your conduct satisfied every element of the offense.

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.

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