Las Vegas Domestic Violence
A Domestic Violence charge is one of the most common charges we handle generally initiated by a family member, significant other or roommate in the heat-of-the-moment. It is important to understand that once a Criminal Complaint if filed the State will not just “drop” or dismiss the case simply because the victim does not want to cooperate with the prosecution or recants the previous statement. The good news is that often times if the victim is not cooperative we are generally successful in getting the case dismissed at trial or negotiating a “submittal” resulting in a dismissal after completing certain court-ordered conditions. Likewise, even though it appears that the deck is stacked against you we have been successful in winning Not Guilty verdicts especially in “he said she said” case where the prosecutor is unable to prove a battery beyond a reasonable doubt because of evidence of self-defense, consent or legal resistance.
What Constitutes Domestic Battery
- A battery is any “willful and unlawful” use of force or violence upon the person of another. NRS 200.481(1)(a)
- A person commits an act that constitutes domestic violence against or upon the person’s spouse or former spouse, any other person to whom the person is related by blood or marriage, any other person with whom the person is or was actually residing, any other person with whom the person has had or is having a dating relationship, any other person with whom the person has a child in common, the minor child of any of those persons, the person’s minor child or any other person who has been appointed the custodian or legal guardian for the person’s minor child. NRS 33.018
Domestic Battery is an Enhanceable Crime
- It is critical to aggressively defend a domestic battery charge because the second domestic violence conviction within seven years of the first one is enhanced starting with a minimum of 10 days to a maximum of 6 months in jail.
- A domestic battery (third offense) within seven years is a category C Felony which carries a minimum term of not less than 1 year and a maximum term of not more than 5 year imprisonment and a maximum fine of $10,000.00
- In addition, domestic battery is enhanced if it involves strangulation, substantial bodily harm, use of a deadly weapon or battery against a protected person.
Domestic Battery by Strangulation
✔ Many people mistakenly believe that strangulation only occurs when the victim is strangled with something wrapped around the neck.
✔ However, strangulation as defined under NRS 200.481(1)(h) occurs when a person “intentionally” impedes the normal breathing or circulation of the blood creates a risk of death or substantial bodily harm by:
- applying pressure on the throat or neck; or
- blocking the nose or mouth of another person in a manner;
✔ Generally, only 11 pounds or more of pressure applied to both a person's carotid arteries for merely 10 seconds can cause unconsciousness, where approximately 33 pounds of pressure is required to completely close off the trachea and brain death will occur in 4-5 minutes.
✔ Also, many of these injuries are documented by photographic and medical evidence.
✔ This strangulation enhancement increased the level of punishment to a category C Felony which carries a minimum of 1 to a maximum of 5 years imprisonment. NRS 200.485(2)
Domestic Battery Causing Substantial Bodily Harm (“SBH”)
✔ A domestic battery which results in substantial bodily harm is also enhanced to a Category C Felony. NRS 200.485(2); NRS 200.481(2)(b).
✔ SBH as defined by NRS 0.0600 occurs when the injury 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
- prolonged physical pain that lasts longer than the pain immediately resulting from the wrongful act
Battery with use of a Deadly Weapon
✔ A deadly weapon enhances the domestic battery to a category B felony by imprisonment for a minimum term of not less than 2 years and a maximum term of not more than 10 years and/or by a fine of not more than $10,000. NRS 200.481(2)(e)(1)
✔ The maximum term of imprisonment increases to not more than 15 years if the victim sustains substantial bodily harm or the battery is committed by strangulation.
✔ A deadly weapons is any 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. NRS 193.165(6)(b)
Increased Penalties if the Battery is Committed on an Officer or Other Protected Person
✔ There are enhanced penalties for committing a battery on an officer, provider of health care, school employee, taxicab driver or transit operator, or sports official acting in the course of their duties; and
✔ Knew or should have known that the person was a protected officer
✔ The person is guilty of a Category B felony by imprisonment for a minimum term of not less than 2 years and a maximum term of not more than 10 years and/or by a fine of not more than $10,000 if the battery is committed by strangulation or the person suffers SBH. NRS 200.481(2)(c).
✔ In the absence of either strangulation or SBH, the battery is a Gross Misdemeanor if it is committed upon an officer in the course their duties. NRS 200.481(2)(d)
✔ Resisting a public officer (a misdemeanor) is a lesser-included offense of battery upon an officer where a person “willfully, resists, delays or obstructs a public officer in discharging or attempting to discharge any legal duty of his office.”
Self-Defense, Lawful Resistance and Consent
✔ Self-defense is justified under NRS 200.275 when a person reasonably believes that they are about to be attacked.
✔ This defense does not require that a person believe that they are in danger of great bodily harm or require a person wait to be attacked before engaging in self-defense.
✔ Reasonably necessary force is what the person reasonably believes their safety requires as opposed to the amount which one would decide necessary with the benefit of 20/20 hindsight.
✔ “Lawful Resistance” allows a person to defend against the commission of a public offense where they are about to be injured. NRS 193.230. The amount of resistance must be sufficient to prevent against the offense. NRS 193.240
✔ Also, a person can consent through words and action to an assault and battery.
✔ Lastly, a battery charge cannot stand where the injury was accidentally inflicted i.e., a person did not intend to inflict the injury.
When Victims Are a No-Show and Material Witness Warrants
✔ Many victims and witnesses are from out-of-state and not subject to Nevada’s jurisdiction of a subpoena.
✔ The prosecutor does have an option to issue a material witness warrant in the other state’s jurisdiction to procure their appearance in court. Generally, Nevada does not expend these resources on a domestic batter misdemeanor.
✔ The prosecutor can also seek continuances by making a good-faith showing of attempted service under Hill and Bustos.
Be Aware of Collateral Consequences of a Domestic Battery Conviction:
✔ It is illegal to own or possess a firearm under NRS 202.360 and the Lautenberg Amendment set forth in 18 U.S.C. § 922(g)(9)
✔ There exists a rebuttable presumption in a child custody case that you are unfit for sole or joint custody under NRS 432B.157 and NRS 125C.230 ; and
✔ Renders a Noncitizen deportable under federal immigration law.
Increased Penalties If in Possession of a Firearm:
✔ A person who has possession of a firearm after a domestic violence conviction is guilty of a category B felony under NRS 202.360 regardless of whether the firearm is loaded or operable.
✔ It is also important to understand that a person who possess a firearm during the period of an Extended Protection Order is also guilty of a category B felony under NRS 33.030
Be Aware of the Effect of a Domestic Violence Conviction in a Civil Lawsuit
✔ If you believe the alleged “victim” will also pursue money damages against you in a civil lawsuit, you need to be aware that a misdemeanor domestic violence conviction serves as conclusive liability in a civil case under NRS 41.133.
✔ The Judgement of Conviction serves as “conclusive evidence of all facts necessary” to impose civil liability regardless of whether you did not even admit guilt by entering a “no contest” or “Alford” plea.
✔ A “no contest” plea, which has not resulted in a judgment of conviction, is inadmissible in a civil lawsuit as well as any discussion related to the criminal case. NRS 48.125(2)
✔ The best option to avoid the harsh effects of NRS 41.133 is to negotiate:
- a “submittal” where no judgment of conviction is entered (assuming the requirements are completed), or
- enter a plea to a “malum prohibitum” offense i.e., Disorderly Conduct staying away from a “malum in se” offense such as battery.
✔ Even where liability is established, NRS 41.133 does not provide for an automatic recovery of damages i.e., a victim’s comparative negligence will proportionally reduce any award of damages. No damages may be awarded if a plaintiff is found to be more than 50 percent at fault.