Difference Between Assault and Battery

Sometimes laypeople talk about assault and battery as if they are interchangeable, but under Nevada law they are distinct. Pursuant to NRS 200.471:
"1. As used in this section:
(a) "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.
(b) "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 a volunteer fire department;
(4) A jailer, guard, or other correctional officer of a city or county jail;
(5) A justice of the Supreme Court, 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.
(c) "Provider of health care" means a physician, 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, an 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 hygienist, a pharmacist, 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 and an emergency medical technician.
(d) "School employee" means a licensed or unlicensed person employed by a board of trustees of a
school district pursuant to NRS 391.100.
(e) "Sporting event" has the meaning ascribed to it in NRS 41.630.
(f) "Sports official" has the meaning ascribed to it in NRS 41.630.
(g) "Taxicab" has the meaning ascribed to it in NRS 706.8816.
(h) "Taxicab driver" means a person who operates a taxicab.
(i) "Transit operator" means a person who operates a bus or other vehicle as part of a public mass
transportation system.
2. A person convicted of an assault shall be punished:
(a) 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.
(b) 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 6 years, or by a fine of not more than $5,000, or by both fine
and imprisonment.
(c) 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.
(d) 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."

Assault is most basically, attempt battery. "Simple" assault is a misdemeanor. There is a long definition of assault because there are number of people in different professions which the statute allows for a greater penalty for committing an assault against, namely law enforcement officers, school employees, and health care providers. There are always greater penalties for the use of a deadly weapon with any criminal act.  Assault, in many ways, is a more illusory crime than battery as no actual physical contact must be made.  There are certain subjective standards which must be proven, and good lawyering can always make a difference. 
If you have been charged with Assault, Assault with a Deadly Weapon, Battery, Battery Domestic Violence, or any other related crime; or if a TPO has been issued against you, please visit georgeforjustice.com.

Prescription Drugs, Alcohol, and Domestic Violence

Prescription drugs and alcohol play a role in many Domestic Violence cases.  As most people are aware, alcohol effects the central nervous system, reducing inhibitions and sometimes causing irrational and explosive behavior.  Prescription drug use with alcohol can amplify these effects.  The use of these substances can provide fuel for physical events in households between people with domestic relationships.  Some of these situations lead to arrests for Domestic Violence.
From a legal perspective, the use of alcohol and prescription drugs are very important.  There are evidentiary concerns that attorneys must take into account when alcohol and/or drugs are involved in a criminal case, namely the ability for a witness or a Defendant to properly perceive the events alleged to have happened.  In many instances, both the alleged victim and the Defendant in a domestic violence case were under the influence of alcohol and/or prescription drugs at the time of the event. 
Police officers are normally keen to the fact that a person is under the influence of alcohol as there are physiological signs like bloodshot eyes.  Usually, there is also a noticeable odor on an intoxicated person's breath.  Additionally, there can be empty containers of consumed alcohol around the crime scene.
Prescription drug use can be harder to detect, and officers do not always investigate this facet of a criminal case.
When reviewing a criminal case, attorneys must investigate the use of alcohol and prescription drugs, so it is important for witnesses and Defendants to discuss the use of these substances with prosecutors and defense attorneys.  Many times police reports notate the use of alcohol and drugs, but amounts and types of drugs can be in question.  More information may need to be gathered for an attorney to properly prepare to discredit, or impeach, a witness at an evidentiary hearing.
If you have been charged with Battery, Battery Domestic Violence, or any other related crime; or if a TPO has been issued against you, please visit georgeforjustice.com.

Domestic Violence on the Las Vegas Strip

Las Vegas Strip and Downtown hotel rooms serve as the location for many arrests by the Las Vegas Metropolitan Police Department for Battery Domestic Violence.  There are a few reasons for this.  The first is that many vacationers to Las Vegas consume large amounts of alcohol which can lead to more explosive and violent interactions between domestic partners. 
The second is gambling.  Gambling can lead to stressful situations when people have risked more resources than they can afford to.  This can result in heated arguments between people who share resources.  Sometimes these heated arguments become physical. 
The third is an issue of proximity.  If you are in a single family residence with a yard and you get into an argument, chances are no one is going to hear it because there is a large buffer in between homes.  In a hotel room, that buffer is not there, so if you get into an argument, the concerned person in the room next to yours is going to call security. 
Fourth, when security comes to the room, someone is probably going to be arrested.  Las Vegas hotels do not want "problems" on their property because one problem could effect many people when everyone is in such close proximity.  If they feel you are a problem, you will most likely be removed by security and then taken to jail by police.
Many situations that arise in hotel rooms are just arguments with little or no physicality, but, for the above reasons, someone gets arrested.
If you have been charged with Battery, Battery Domestic Violence, or any other related crime; or if a TPO has been issued against you, please visit georgeforjustice.com.

In Nevada, Domestic Violence Cases are Enhanceble

Enhanceable, which means if you are convicted of Battery Domestic Violence, and, after the first conviction, you are charged and convicted again, the penalties are higher for the subsequent conviction.  This is similar to laws enacted to prevent drunk driving.  The law that describes these enhancements is NRS 200.485.  The relevant sections are reproduced below.
 "1. Unless a greater penalty is provided pursuant to subsection 2 or NRS 200.481, a person convicted of a battery which constitutes domestic violence pursuant to NRS 33.018:
(a) For the first offense within 7 years, is guilty of a misdemeanor and shall be sentenced to:
(1) Imprisonment in the city or county jail or detention facility for not less than 2 days, but not more than 6 months; and
(2) Perform not less than 48 hours, but not more than 120 hours, of community service.
The person shall be further punished by a fine of not less than $200, but not more than $1,000. A term of imprisonment imposed pursuant to this paragraph may be served intermittently at the discretion of the judge or justice of the peace, except that each period of confinement must be not less than 4 consecutive hours and must occur at a time when the person is not required to be at his or her place of employment or on a weekend.
(b) For the second offense within 7 years, is guilty of a misdemeanor and shall be sentenced to:
(1) Imprisonment in the city or county jail or detention facility for not less than 10 days, but not more than 6 months; and
(2) Perform not less than 100 hours, but not more than 200 hours, of community service.
The person shall be further punished by a fine of not less than $500, but not more than $1,000.
(c) For the third and any subsequent offense within 7 years, is guilty of a category C felony and shall be punished as provided in NRS 193.130...."
Also, a person convicted of a second offense battery domestic violence within 7 years must attend counseling seesions once a week for 52 weeks as opposed to 26 weeks for a first offense.  NRS 200.485(3).
This is another reason why retaining effective counsel is so important in a battery domestic violence case because you may be able to prevent these enhanced penalties in a subsequent case.  There are also legal and factual defenses that may arise in the subsequent cases regarding the prior convictions.
If you have been charged with Battery, Battery Domestic Violence, or any other related crime; or if a TPO has been issued against you, please visit georgeforjustice.com.

Stalking and Texting

In some Domestic Violence cases, there are allegations of stalking.  A common example of stalking would be a scorned lover who uses the telephone to call their ex-girlfriend a hundred times, making her feel threatened or harassed.  In most scenarios, this would be charged as a misdemeanor crime if prosecuted. 
New technology and people making threats over the internet and text message has inspired lawmakers to enact new legislation regarding stalking. An example of this is NRS § 200.575(3) which states, "A person who commits the crime of stalking with the use of an Internet or network site, electronic mail, text messaging or any other similar means of communication to publish, display or distribute information in a manner that substantially increases the risk of harm or violence to the victim shall be punished for a category C felony as provided in NRS 193.130."  This new law is a more serious crime than the misdemeanor discussed above.
The use of the internet or other eletronic media to threaten, harass, or publish undesirable material about another is very problematic to defend against for obvious reasons.  Mainly because there will always be a record of the communication.  Another is that these communications could subject a person to more severe criminal punishments.  There are defenses to these cases as some communications could be determined to be inadmissable at trial, or taken out of context in the situation.  
If you have been charged with Battery, Battery Domestic Violence, Stalking, Harassment or any other related crime; or if a TPO has been issued against you, please visit georgeforjustice.com.

Temporary Protective Orders Are Easy To Get

When a person feels threatened by another person and does not want to interact with that person any longer, one thing they can do is ask a court for an order making it a crime for that scary person to interact with them.  This court order is call a protective order in Nevada.  In some other jurisdictions, it is called a restraining order.  Protective orders are easy to get.  As a matter of public policy, our lawmakers have made protective orders easy to receive because we have determined that it is better for a protective order to be granted in a situation where it is truly not needed than the opposite.
When we talk about the ease in which a Protective Order can be obtained, we must discuss burdens of proof.  There are different amounts of evidence which must be shown to the Court in different legal situations for courts to take action.  In criminal cases, law enforcement must present evidence which shows that a crime was committed "beyond a reasonable doubt."  Reasonable doubt is defined by NRS § 175.211 as shown below.
"A reasonable doubt is one based on reason. It is not mere possible doubt, but is such a doubt as would govern or control a person in the more weighty affairs of life. If the minds of the jurors, after the entire comparison and consideration of all the evidence, are in such a condition that they can say they feel an abiding conviction of the truth of the charge, there is not a reasonable doubt. Doubt to be reasonable must be actual, not mere possibility or speculation."  There is a vast amount of law and legal theory on this concept, and any further discussion of this burden is beyond the scope of this blog. 
In civil litigation, the burden is normally a "preponderance of the evidence" which is defined by Nevada Civil Jury Instruction 3.00.  Preponderance of the evidence "means such evidence as, when weighed with that opposed to it, has more convincing force, and from which it appears that the greater probability of truth lies therein."  More simply, more likely than not.
For a Protective Order to be issued in a situation where there is an allegation of Domestic Violence, the applicant must show to the "satisfaction of the court from specific facts shown by a verified application that an act of domestic violence has occurred or there exists a threat of domestic violence."  NRS § 33.020(1).
This "satisfaction of the court" burden is not well defined, but it is clearly low.  Definitely lower than preponderance of the evidence.  Therefore, the Court has great latitude in issuing Protective Orders.  This makes Protective Orders very easy to obtain, especially temporary protective orders because they are issued without a hearing. 
One problem with the ease of obtaining a Protective Order in the modern world of information sharing is that the world can find out that a Protective Order was issued against you.  This can have a significant effect on a person's life, both personally and professionally.  It is possible to defend against the issuance of some Protective Orders like Extended Orders, but it is difficult, especially without an attorney.
If you have been charged with Battery, Battery Domestic Violence, or any other related crime; or if a TPO has been issued against you, please visit georgeforjustice.com.

The Police Didn't Read Me My Miranda Rights

The police don't necessarily have to read you the Miranda "rights" or warnings for you to be arrested, charged, or convicted of a crime.  As a brief overview, the name Miranda comes from the case Miranda v. Arizona which was heard by the U.S. Supreme Court.  384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).  The U.S. Supreme Court stated in Miranda that if law enforcement takes statements from a suspect during a custodial interrogation, they must read the suspect the Miranda warnings prior to the questioning.  If they do not, it may violate your Fifth Amendment right against self-incrimination, and law enforcement may not be able to present those statements at an evidentiary hearing.  There are exceptions to this rule, and there is a voluminous body of case law that details the Miranda warnings and what a custodial interrogation is, etc.
A violation of a defendant's Fifth Amendment rights could affect a Battery Domestic Violence case.  Many times law enforcement's case hinges on a statement that was made to an officer who arrives at the scene shortly after the alleged incident.  An attorney needs to carefully review the case, and, depending on the overall strategy in the case, prepare a request to the Court to disallow the presentation of the statement in question at trial.
If you have been charged with Battery, Battery Domestic Violence, or any other related crime; or if a TPO has been issued against you, please visit georgeforjustice.com.

Statements Made at Hearings for Protective Orders

In order to extend a Protective Order past the initial 30 day temporary period, a hearing must be held in which the Applicant has to affirm the facts alleged in the application under oath.  At this hearing, the Adverse Party may present testimony to the contrary.  Unlike most criminal actions where Defendants have the right to counsel and are protected, there is no right in this context.  Adverse Parties must be very careful as to what they present because statements made at the hearing regarding the protective order are admissible at subsequent hearings, like criminal or civil trials.  The relevant part of the evidentiary code is stated below.  "Hearsay" means a statement offered in evidence to prove the truth of the matter asserted unless:
 1. The statement is one made by a witness while testifying at the trial or hearing;
 2. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is:
(a) Inconsistent with the declarant's testimony;
(b) Consistent with the declarant's testimony and offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive;
(c) One of identification of a person made soon after perceiving the person; or
(d) A transcript of testimony given under oath at a trial or hearing or before a grand jury; ...
NRS § 51.035
Many times non-lawyers do not realize that they are making admissions to criminal acts or civil liability when they are under oath at these hearings.  This is another reason to retain counsel before the hearing to extend a protective order. 
If you have been charged with Battery, Battery Domestic Violence, or any other related crime; or if a TPO has been issued against you, please visit georgeforjustice.com.

Defendants' Conversations with Witnesses Under Subpoena

In Domestic Violence cases, many times alleged victims, who are under subpoena or will be subpoenaed, and Defendants in cases still associate with one another.  They are husbands and wives, boyfriends and girlfriends, etc.  Defendants in these situations need to be very careful as to what they say to alleged victims in these situations because certain statements could constitute criminal acts.
For instance, certain statements could be considered preventing or dissuading person from testifying or producing evidence.  Nevada law states, "A person who, by persuasion, force, threat, intimidation, deception or otherwise, and with the intent to obstruct the course of justice, prevents or attempts to prevent another person from appearing before any court, or person authorized to subpoena witnesses, as a witness in any action, investigation or other official proceeding, or causes or induces another person to be absent from such a proceeding or evade the process which requires the person to appear as a witness to testify or produce a record, document or other object, shall be punished:
1. Where physical force or the immediate threat of physical force is used, for a category D felony as provided in NRS 193.130.
2. Where no physical force or immediate threat of physical force is used, for a gross misdemeanor."
NRS 199.230.
Statements by Defendants to alleged victims about appearing in court, or even discussions about the perception of the events in question could make a bad situation even worse, especially if the relationship turns sour.  This is even more of a concern when the communication is via text message, email, or other written form.
For a more in-depth discussion of this area of law, or others that deal with subpoenas and witnesses, please contact me through georgeforjustice.com
If you have been charged with Battery, Battery Domestic Violence, or any other related crime; or if a TPO has been issued against you, please visit georgeforjustice.com.

What is Harassment?

Allegations of harassment arise frequently in applications for protective orders, but what exactly is harassment pursuant to Nevada law?  This allegation is probably most common when people in a domestic relationship have a disagreement which results in a verbal altercation.  Most people's connotation of harassment is related to a persistent annoyance, but the conduct in question must go past annoyance under Nevada law to legally constitute harassment.
Harassment is defined by Nevada law as follows:
1. A person is guilty of harassment if:
(a) Without lawful authority, the person knowingly threatens:
(1) To cause bodily injury in the future to the person threatened or to any other person;
(2) To cause physical damage to the property of another person;
(3) To subject the person threatened or any other person to physical confinement or restraint; or
(4) To do any act which is intended to substantially harm the person threatened or any other person with respect to his or her physical or mental health or safety; and
(b) The person by words or conduct places the person receiving the threat in reasonable fear that the threat will be carried out.  If a court decides that person has committed an act that fits within this definition, the person is guilty of a misdemeanor crime.  It is also enhanceable as a second conviction would be a gross misdemeanor. NRS 200.571
As stated above, this allegation normally appears in applications to the court for protective orders and not as a criminal charge.  Even in the applications, the conduct in question must fit the definition of harassment.  Adverse parties must take into account that, as discussed in this blog in previous posts, the burden of proof is significantly lower to have a protective order issued than it is for a guilty verdict in a criminal case.  It is important to consult an attorney if a protective order has been issued against you as some allegations in applications for protective orders do not rise to the level of harassment as a matter of law, and an attorney should be able to have the protective order dissolved.
If you have been charged with Battery, Battery Domestic Violence, or any other related crime; or if a TPO has been issued against you, please visit georgeforjustice.com.