“Wobbler” Crimes in Nevada – A Legal Guide

In Nevada, wobblers are crimes that can be prosecuted as either felonies or gross misdemeanors. The only offenses that are considered wobblers are attempts to commit a category C felony, a category D felony, or a category E felony.

Clearly, it is preferable to be convicted of a gross misdemeanor rather than a felony. Prosecutors will often agree to treat wobblers as gross misdemeanors as part of a plea deal.

In this article, our Las Vegas criminal defense attorneys discuss the following topics re. wobblers.

• 1. What is an attempt crime?
• 2. Penalties
• 3. When are wobblers treated as gross misdemeanors?
• 4. Trials
• 5. Record Seals
• 6. Immigration Consequences
• Additional Reading

1. What is an attempt crime?

Like it sounds, an attempt crime is taking decisive actions in furtherance of criminal activity but falling short of carrying it out.¹ For example, a drug dealer who verbally agrees to sell someone Xanax can be prosecuted for attempted drug selling even if the buyer backs out last minute.

Most attempt crimes in Nevada are wobblers, such as:

• attempted battery causing substantial bodily harm without a deadly weapon;
• attempted violation of a protective order;
• attempted drug sale (first offense for schedule III, IV or V drugs);
• attempted drug possession for sale (first offense);
• attempted arson (third degree); and
• attempted drug possession (first offense).

2. Penalties

Wobbler punishments in Nevada vary depending on whether you were accused of attempting a category C, D or E felony.² The table below spells out the punishments.

3. When are wobblers treated as gross misdemeanors?

Nevada judges have discretion over whether a wobbler conviction is treated as a felony or a gross misdemeanor. Your defense attorney’s job is to convince the judge that you are worthy of the lesser conviction because of your:

• Lack of a criminal history,
• Poor physical or mental health,
• Positive contributions to the community, and/or
• Remorse.³

In many cases, we can negotiate a plea deal where you get a gross misdemeanor conviction instead of a felony conviction. When this happens, the judge will likely rubber stamp the plea deal during the sentencing hearing.

4. Trials

Anyone charged with a wobbler crime in Nevada is entitled to a jury trial or a bench trial.⁴ In practice, jury trials are preferable because it is usually easier to persuade your peers rather than a judge.

5. Record Seals

If and when a wobbler criminal record can be sealed in Nevada depends on the category of crime, as the following table shows:

Note that some crimes can never be sealed, including:

• Sex crimes,
• Offenses against children, and
• DUI felony convictions.

Also note that wobbler crimes that result in a dismissal (which means there is no conviction) can be sealed right away without a waiting period.⁵

6. Immigration Consequences

If you are a non-citizen in Nevada, you risk being removed from the U.S. if you get convicted of an aggravated felony or crime involving moral turpitude.⁶ Examples of deportable wobblers are:

• attempted child pornography (using the internet to view pornography under NRS 200.727),
• attempted theft or violent crime with a sentencing order of at least one year,
• attempted soliciting a child for prostitution,
• attempted criminal gang recruitment, or
• attempted third-degree arson.

If you are charged with a deportable offense, hire an attorney to try to get the charge dismissed or changed to a non-deportable offense.

Additional Reading

For more in-depth information on attempt crimes, refer to the following scholarly articles:

• Trying, Intending, and Attempted Crimes – Article in Philosophical Concepts.
• Criminal Attempts at Common Law – Article in University of Pennsylvania Law Review.
• Criminal Attempts – The Rise and Fall of an Abstraction – Article in the Yale Law Journal.
• Criminal Attempts – Early history in the Harvard Law Review.
• Criminal Attempts – Overview in the Dickinson Law Review.