BATTERY

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

What is the legal definition of Battery?

Assault is defined in NRS 200.481:

  1. As used in this section:
    1. “Battery” means any willful and unlawful use of force or violence upon the person of another.
    2. “Child” means a person less than 18 years of age.
    3. “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.
    4. “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.
    5. “School employee” means a licensed or unlicensed person employed by a board of trustees of a school district pursuant to NRS 391.100.
    6. “Sporting event” has the meaning ascribed to it in NRS 41.630.
    7. “Sports official” has the meaning ascribed to it in NRS 41.630.
    8. “Taxicab” has the meaning ascribed to it in NRS 706.8816.
    9. “Taxicab driver” means a person who operates a taxicab.
    10. “Transit operator” means a person who operates a bus or other vehicle as part of a public mass transportation system.
  2. Except as otherwise provided in NRS 200.485, a person convicted of battery, other than a battery committed by an adult upon a child which constitutes child abuse, shall be punished:
    1. If the battery is not committed with a deadly weapon, and no substantial bodily harm to the victim results, except under circumstances where a greater penalty is provided in this section or NRS 197.090, for a misdemeanor.
    2. If the battery is not committed with a deadly weapon, and either substantial bodily harm to the victim results or the battery is committed by strangulation, for a category C felony as provided in NRS 193.130.
    3. If:
      1. The battery is committed upon an officer, provider of health care, school employee, taxicab driver, or transit operator who was performing his or her duty or upon a sports official based on the performance of his or her duties at a sporting event;
      2. The officer, provider of health care, school employee, taxicab driver, transit operator or sports official suffers substantial bodily harm or the battery is committed by strangulation; and
      3. The person charged knew or should have known that the victim was an officer, provider of health care, school employee, taxicab driver, transit operator or sports official,
    • For a category B felony by imprisonment in the state prison for a minimum term of not less than 2 years, and a maximum term of not more than 10 years, or by a fine of not more than #10,000, or by both fine and imprisonment.
    1. If the battery is committed upon an officer, provider of health care, school employee, taxicab driver or 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, provider of health care, school employee, taxicab driver, transit operator or sports official, for a gross misdemeanor, except under circumstances where a greater penalty is provided in this section.
    2. If the battery is committed with the use of a deadly weapon, and:
      1. No substantial bodily harm to the victim results, for a category B felony by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 10 years, and may be further punished by a fine of not more than $10,000.
      2. Substantial bodily harm to the victim results or the battery is committed by strangulation, for a category B felony by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 15 years , and may be further punished by a fine of not more than $10,000.
    3. If the battery is committed by a probationer, a prisoner who is in lawful custody or confinement or a parolee, without the use of a deadly weapon, whether or not substantial bodily harm results and whether or not the battery is committed by strangulation, 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.
    4. If the battery is committed by a probationer, a prisoner who is in lawful custody or confinement or a parolee, with the use of a deadly weapon, and:
      1. No substantial bodily harm to the victim results, for a category B felony by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 10 years.
      2. Substantial bodily harm to the victim results or the battery is committed by strangulation, for a category B felony by imprisonment in the state prison for a minimum term of not less than 2 years, and a maximum term of not more than 15 years.

That seems like a lot of information for a one crime?

Let’s start with the definition of “Battery.”

Subsection 1(a.) provides the definition of “battery” as “any willful and unlawful use of force or violence upon the person of another.”

This means that there are three elements to a “battery” charge:

  1. Physical force or violence, sometimes called a harmful or offensive touching;
  2. Willful use; and
  3. Unlawful use.

What exactly do you mean by “physical force or violence”?

Basically, this only means that a “touching” occurs. However, it is important to remember that the “touching” does not have to be physical contact between the accused and the victim. There are a number of types of “physical force” that do not require physical contact between two people, including:

  • Blowing smoke into someone’s face;
  • Slipping some kind of drug into another person’s drink;
  • Setting a trap that harms someone hours or days later.

So long as the accused does something that causes a “touching” of some kind, then this element is satisfied.

Please Note: The ‘touching’ must either cause the victim some kind of harm or be offensive to a reasonable person. As with the example of blowing smoke in someone’s face, if a reasonable person, in the victim’s position, wouldn’t find it offensive to have someone blowing smoke in their face, then the ‘touching’ of the smoke to their face is not offensive and is therefore not a battery.

What do you mean by “willful use?

“Willful use” simply means intent. However, there are two kinds of “intent” that can lead to a battery charge:

  • Actually intending to cause a physical touching – say for instance, swinging your fist at someone with the intent to punch them.
  • Knowledge that your actions are likely to lead to a physical touching – As an example, if you were shadow-boxing in a dark and empty room and someone happened to walk in to the room and accidentally got punched because you couldn’t see them and had no reason to believe they were there, battery would not be appropriate because you had no intent, nor any reason to believe that someone would get hit. However, if you were to start shadow-boxing on a crowded subway platform, or inside a crowded elevator, and accidentally hit someone, then you could be charged with battery because a reasonable person would know that shadow-boxing in a confined and crowded place is likely going to lead to someone getting hit.

So a harmful or offensive touching that was intended, or likely to happen from the accused’s conduct, satisfies the first two elements of battery.

So, then, what is “unlawful use”?

Basically, this just means that you didn’t have a reason to cause the touching. For example, if you are walking down the street when someone trips and you reach out to catch them, then you would not be touching them in an offensive manner. Your ‘touching’ would be warranted. However, if you were walking down the street and just reached out and grabbed someone for no reason, then the touching would not be warranted, and battery may be appropriate.

Please Note: It is very important to understand that battery does not require that the victim is aware of the touching. If you were to slip a drug into someone’s drink without them knowing, then they would be completely unaware of the conduct, but it would still satisfy all three elements of a battery.

What is the deal with all those definitions?

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

  • Anyone under 18 years of age;
  • 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, committing a battery against someone who happens to be an umpire or referee is not the same thing as committing a battery against an umpire or referee.

If you commit a battery against someone because of a disagreement at a bar, and then find out that he or she is an umpire or referee. Then they were probably not acting in their capacity as an umpire or referee. The penalty will not be the same as if you were to commit a battery against 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 battery depend on who was assaulted. They also depend on whether the battery was committed with a deadly weapon, or the immediate ability to use a deadly weapon.

If the battery was against someone without the use or immediate ability to use a deadly weapon, and there was no substantial bodily harm , then the battery 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 battery was against someone without the use or immediate ability to use a deadly weapon, and there was substantial bodily harm , then the battery should be charged as a category C felony, which means possible penalties of:

  • Between 1 and 5 years in a Nevada State Prison; and
  • Possible fines up to $10,000.00.

If the battery was committed against one of the categories of people listed above, without the use, or immediate ability to use deadly weapon and no substantial bodily harm , then the battery 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 battery was committed with the use or immediate ability to use a deadly weapon, and there was no substantial bodily harm , then the battery should be charged as a category B felony, which means possible penalties of:

  • Between 2 and 10 years in a Nevada State Prison; and
  • Possible fines up to $10,000.00.

If the battery was committed with the use or immediate ability to use a deadly weapon, and there was substantial bodily harm , then the battery should be charged as a category B felony, which means possible penalties of:

  • Between 2 and 15 years in a Nevada State Prison; and
  • Possible fines up to $10,000.00.

If the battery was committed without the use or immediate ability to use a deadly weapon, no substantial bodily harm , and the accused is a prisoner, or on parole or probation, 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.

If the battery was committed with the use or immediate ability to use a deadly weapon, no substantial bodily harm , and the accused is a prisoner, or on parole or probation, then the assault should be charged as a category B felony, which means possible penalties of:

  • Between 2 and 10 years in a Nevada State Prison.

If the battery was committed with the use or immediate ability to use a deadly weapon, there was substantial bodily harm , and the accused is a prisoner, or on parole or probation, then the assault should be charged as a category B felony, which means possible penalties of:

  • Between 2 and 15 years in a Nevada State Prison.

Are there any Defenses?

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

  • Necessity – This defense is based on the accused’s need to commit the touching, or the need to touch the victim in a harmful or offensive way. Some common examples of this are a physician performing medical aid on someone who is unable to give consent. Or, as in the example used above, if someone were to trip while walking down the street, if that person were to come in contact with another person in an attempt to avoid falling, then the touching would not battery. Similarly, if you were to attempt to ‘catch’ that personas they tripped, then your touching would also not constitute a battery.
  • Not harmful or offensive – In order to constitute a battery, the touching must be must be offensive to a reasonable person or harmful to the victim. As with the example of the person who trips, if you were to try to catch them, your touching may, in fact, offend them. However, generally speaking, the reasonable person would be grateful to you for trying to help and would not find the touching offensive, which is why it would not be a battery. If the touching is not offensive to a reasonable person, then it must be harmful to the victim. Generally, the victim has to experience an actual, identifiable harm in order for battery to be charged.
  • Consent – Battery cannot be charged if the victim consented to the touching. This is often the case when a someone gets injured playing sports. As long as the touching is a natural part of the sport (such as tackling in football), then the Court views the victim as consenting to the conduct. However, there are many other instances where someone consents to a harmful or offensive touching. For example, if asks to have drugs put into their drink, then the accused would not be guilty of battery (though might be guilty of possession or other crimes).
  • Self-Defense – Self-defense laws allow for the “reasonable use of force” in defense of yourself and others. If you can show that your use of force was done in self-defense, or in the defense of others, and out of a reasonable belief that you or the person you were defending was about to be harmed, then the battery charges should be dropped or dismissed. However, the force used must not be disproportionate to the threatened danger.
  • Defense of property – In some instances, you are allowed to use force to defend your property. You are generally justified in using reasonable force to protect your home because Nevada does not have any laws that force a “duty to retreat” on you. So long as you did not provoke or invite the conflict, you have a right to stand your ground. In the case where someone enters the house to commit a felony or to physically hurt someone, you are even justified in killing the intruder, so long as the intruder’s intent was clear.
  • No Intent – Battery requires intent. So if you did not intend to make an physical contact or “touching,” then battery is inappropriate. However, if a harmful or offensive contact is likely to occur from your conduct, then this defense would not apply. If you were aware that you would likely cause a harmful or offensive contact, then you can still be charged with battery. If you had no intent, and were unaware that such a contact may occur, then the charges against you should be dropped or dismissed.

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.

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