ASSAULT

Although most people believe that “assault and battery” is one crime, that is not the case. “Assault” is a crime that is separate and distinct from the crime “battery.”

What is the legal definition of Assault?

Assault is defined in NRS 200.471:

As used in this section:
1. “Assault” means:
  1. Unlawfully attempting to use physical force against another person; or
  2. Intentionally placing another person in reasonable apprehension of immediate bodily harm.
2. “Officer” means:
  1. A person who possesses some or all of the powers of a peace officer;
  2. A person employed in a full-time salaried occupation of fire fighting for the benefit or safety of the public;
  3. A member of the volunteer fire department;
  4. A jailer, guard or other correctional officer of a city or county jail;
  5. A justice of the Supreme Court, judge of the Court of Appeals, district judge, justice of the peace, municipal judge, magistrate, court commissioner, master or referee, including a person acting pro tempore in a capacity listed in this subparagraph; or
  6. An employee of the State or a political subdivision of the State whose official duties require the employee to make home visits.
3. “Provider of health care” means a physician, a medical student, a perfusionist or a physician assistant licensed pursuant to chapter 630 of NRS, a practitioner of respiratory care, a homeopathic physician, an advanced practitioner of homeopathy, a homeopathic assistant, on osteopathic physician, a physician assistant licensed pursuant to chapter 633 of NRS, a podiatric physician, a podiatry hygienist, a physical therapist, a medical laboratory technician, an optometrist, a chiropractor, a chiropractor’s assistant, a doctor of Oriental medicine, a nurse, a student nurse, a certified nursing assistant, a nursing assistant trainee, a medication aide – certified, a dentist, a dental assistant, a dental hygienist, a dental hygienist student, a pharmacist, a pharmacy student, an intern pharmacist, an attendant on an ambulance or air ambulance, a psychologist, a social worker, a marriage and family therapist, a marriage and family therapist intern, a clinical professional counselor, a clinical professional counselor intern, a licensed dietitian, an emergency medical technician, an advanced emergency medical technician or paramedic.
4. “School employee” means a licensed or unlicensed person employed by a board of trustees of a school district pursuant to NRS 391.100.
5. “Sporting event” has the meaning ascribed to it in NRS 41.630.
6. “Sports official” has the meaning ascribed to it in NRS 41.630.
7. “Taxicab” has the meaning ascribed to it in NRS 706.8816.
8. “Taxicab driver” means a person who operates a taxicab.
9. “Transit operator” means a person who operates a bus or other vehicle as part of a public mass transportation system.
A person convicted of assault shall be punished:
1. If paragraph (c) or (d) does not apply to the circumstances of the crime and the assault is not made with the use of a deadly weapon or the present ability to use a deadly weapon, for a misdemeanor.
2. If the assault is made with the use of a deadly weapon or the present ability to use a deadly weapon, for a category B felony by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 6years, or by a fine of not more than $5,000, or by both fine and imprisonment.
3. If paragraph (d) does not apply to the circumstances of the crime and if the assault is committed upon an officer, a provider of health care, a school employee, a taxicab driver or a transit operator who is performing his or her duty or upon a sports official based on the performance of his or her duties at a sporting event and the person charged knew or should have known that the victim was an officer, a provider of health care, a school employee, a taxicab driver, a transit operator or a sports official, for a gross misdemeanor, unless the assault is made with the use of a deadly weapon or the present ability to use a deadly weapon, then for a category B felony by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 6 years, or by a fine of not more than $5,000, or by both fine and imprisonment.
4. If the assault is committed upon an officer, a provider of health care, a school employee, a taxicab driver or a transit operator who is performing his or her duty or upon a sports official based on the performance of his or her duties at a sporting event by a probationer, a prisoner who is in lawful custody or confinement or a parolee, and the probationer, prisoner, or parolee charged knew or should have known that the victim was an officer, a provider of health care, a school employee, a taxicab driver, a transit operator or a sports official, for a category D felony as provided in NRS 193.130, unless the assault is made with the use of a deadly weapon or the present ability to use a deadly weapon, then for a category B felony by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 6 years, or by a fine of not more than $5,000, or by both fine and imprisonment.

That is a lot of information to take in, what do I really need to know?

To start, subsection 1. defines the two different types of Assault:

Unlawfully attempting to use physical force against another person; or
Intentionally placing another person in reasonable apprehension of immediate bodily harm.

In other words, if you attempt to hit, push, kick, or in any way make unnecessary or unjustified physical contact with another person, then you would have committed assault by way of the first.

The second type of assault occurs when you intentionally make someone else believe that they are about to be physically harmed. The statute is left vague as to what constitutes the ‘about to be harmed’ requirement. This is so that prosecutors have discretion over when to charge someone. For purposes of explanation, however, assume that you are in an argument with someone when they raised their fist in a threatening manner. If you believed that the person was about to hit you, then they would have committed assault. However, if the person were to have threatened that they would hit you some time next week, that would not be assault because the threat is not ‘immediate.’ Moreover, if you were to then see that person the next day while walking past a shop, and they made the same threatening motion with their fist, but from inside the store, that would probably not be assault as they could not hit you without first exiting the store.

Keep in mind that the more likely the threatened, or perceived, harm is to happen, and the more immediate the threat is, the more likely assault will apply.

That’s easy enough. What is the deal with all those definitions?

Those definitions help to determine how severe the assault charges will be. If you assaulted someone that falls into one of those definitions, then the penalties will be more drastic. The definitions can be summed up as:

A police offer or fire fighter;
An officer at a correctional facility;
A judge, magistrate, or anyone else acting as a judge or referee in a legal proceeding;
An employee of the State who is required to make home visits (like a social worker);
Any form of health care provider;
Anyone who works for a school district;
An umpire or referee of a sporting event, so long as they are acting in that capacity; or
The driver of a public form of transportation, like a bus, taxi, etc., so long as they are acting in that capacity.

What do you mean by “so long as they are acting in that capacity”?

Quite simply, assaulting someone who happens to be an umpire or referee is not the same thing as assaulting an umpire or referee.

If you assault someone because of a disagreement at a bar, and then find out that he or she is an umpire or referee, then they were not acting in their capacity as an umpire or referee. The penalty will not be the same as if you were to assault them after they made a bad call during a sporting event.

And the same goes for drivers of public transportation.

What are the possible penalties?

As noted above, the penalties for assault depend on who was assaulted. They also depend on whether the assault was committed with a deadly weapon, or the immediate ability to use a deadly weapon.

If the assault was against someone not defined in NRS 200.471, without the use or immediate ability to use a deadly weapon then the assault should be charged as a misdemeanor, which means possible penalties of:

Up to 6 months in jail; and/or
Possible fines up to $1,000.00.

If the assault was against someone not defined in NRS 200.471, with the use or immediate ability to use a deadly weapon then the assault should be charged as a category B felony, which means possible penalties of:

Between 1 and 6 years in a Nevada State Prison; and/or
Possible fines up to $5,000.00.

If the assault was against one of the categories defined in NRS 200.471(1)(b)-(i), without the use or immediate ability to use a deadly weapon then the assault should be charged as a gross misdemeanor, which means possible penalties of:

Up to 364 days in a Nevada State Prison; and/or
Possible fines up to $2,000.00.

If the assault was against one of the categories defined in NRS 200.471(1)(b)-(i), with the use or immediate ability to use a deadly weapon then the assault should be charged as a category B felony, which means possible penalties of:

Between 1 and 6 years in a Nevada State Prison; and/or
Possible fines up to $5,000.00.

If the assault was against one of the categories defined in NRS 200.471(1)(b)-(i), without the use or immediate ability to use a deadly weapon, and the accused is a prisoner, or on parole or probation, then the assault should be charged as a category D felony, which means possible penalties of:

Between 1 and 4 years in a Nevada State Prison; and/or
Possible fines up to $5,000.00.

Between 1 and 6 years in a Nevada State Prison; and/or
Possible fines up to $5,000.00.

Are there any Defenses?

The possible defenses to Assault charges will depend on the specific circumstances of your case, but may include:

No Immediate Harm – As already noted above, in order to be charged with Assault, the fear of harm has to be immediate. Generally, any harm that can not occur within a few seconds is not immediate enough for an assault charge. If the fear of harm is not something that can take place within a few seconds, then the assault charges should be dropped or dismissed.
Fear was not Reasonable – The victim of assault must “reasonably” believe that the harm will take place. For this reason, if a young child raises a fist in a threatening manner towards a grown man, assault charges would probably not stand because it would not be reasonable to believe that the child was going to hurt or harm the man.
Vague Threat of Harm – Although really only a sub-set of “unreasonable fear,” a vague threat of harm is difficult to be reasonably afraid of. If the threatened harm is not specific enough for the victim to know what he or she should fear, then the assault charges should be dropped or dismissed.
Consent – Assault cannot be charged if the victim consented to the assault. Under the first type of assault, the attempt at unwarranted physical contact, there can be no “unwarranted” or “unjustified” contact if the person consents to the attempted contact. By consenting, the attempted contact is automatically warranted. The second type of assault, the fear of immediate harm, consent would overcome the “fear” aspect. By consenting to the immediate harm, the element of “fear,” or “apprehension” as it is referred to in the statute is eliminated.
Self-Defense – Self-defense laws allow for the “reasonable use of force” in defense of yourself and others. If you can show that your attempted physical contact, or your threat to harm someone else, was done in self-defense, and out of a reasonable belief that you were about to be harmed, then the assault charges should be dropped or dismissed.
No Intent – Assault requires intent. In the first instance, if you did not intend to attempt an unwarranted physical contact, then you could not have assaulted the victim. As an example, if you were stretching your arms to either side, and in the process almost hit someone, there would be no assault because you were not “attempting” to make any contact with them. Similarly, with the other type of assault, even if the person had a reasonable belief that you were about to harm them, you would not have assaulted them because you had not intended to put them in such fear or apprehension.

What should I do if I’ve been charged with Assault?

As with any crime, it is very important that you speak with an experienced criminal defense attorney as soon as possible so that you can discuss the specific circumstances as well as any defenses that may apply to your case.