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Attorney Chandon S. Alexander is a Las Vegas lawyer who is an active member of the National Trial Lawyers Association and has been recognized as one of the Top 10 Attorneys under 40. He is a member of the Clark County Bar Association, American Bar Association, and the Nevada Justice Association.
According to Nevada law (NRS 0.060) “Substantial Bodily Harm” is defined as the following:
Bodily injury which 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
Domestic violence with substantial bodily harm refers not only to life-threatening or debilitating injuries but also to long-lasting cosmetic damage or chronic pain. Examples might include the following:
NRS 33.018 enumerate acts that constitute domestic violence:
1. Domestic violence occurs when a person commits one of the following acts 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 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:
(a) A battery.
(b) An assault.
(c) Coercion pursuant to NRS 207.190.
(d) A sexual assault.
(e) A knowing, purposeful or reckless course of conduct intended to harass the other person. Such conduct may include, but is not limited to:
(1) Stalking.
(2) Arson.
(3) Trespassing.
(4) Larceny.
(5) Destruction of private property.
(6) Carrying a concealed weapon without a permit.
(7) Injuring or killing an animal.
(8) Burglary.
(9) An invasion of the home.
(f) A false imprisonment.
(g) Pandering.
2. The provisions of this section do not apply to:
(a) Siblings, except those siblings who are in a custodial or guardianship relationship with each other; or
(b) Cousins, except those cousins who are in a custodial or guardianship relationship with each other.
3. As used in this section, “dating relationship” means frequent, intimate associations primarily characterized by the expectation of affectional or sexual involvement. The term does not include a casual relationship or an ordinary association between persons in a business or social context.
In order for the phrase ‘prolonged physical pain’ to be true, the domestic violence event must “necessarily encompass some physical suffering or injury that lasts longer than the pain immediately resulting from the wrongful act.” Collins v. State, 125 Nev. 60, 64, 203 P.3d 90, 92–93 (2009). “In a battery, for example, the wrongdoer would not be liable for ‘prolonged physical pain’ for the touching itself. However, the wrongdoer would be liable for any lasting physical pain resulting from the touching.”
However, these instances of prolonged physical pain are not always cut and dry. For example, one of the most highly contested issues in these types of domestic violence cases is whether the contact that was made is enough to constitute a felony, especially when prolonged physical pain is simply alleged, not proven. Without that allegation, a standard domestic violence charge in Nevada is a misdemeanor with severely lesser penalties and punishments. Additionally, a domestic battery charge can also be a felony when it is alleged that there was strangulation or suffocation involved. Regardless, most of these cases all start as a domestic violence offense, from there the prosecutor will determine if there are enhanced charges tacked on, such as domestic violence with substantial bodily harm. If you’re facing similar charges, it’s critical that you speak with an experienced criminal defense attorney as quickly as possible.
In these types of cases, prosecutors will claim that the defendant caused substantial bodily harm during the domestic violence event. However, simply making this accusation is not enough for a charge of domestic violence with substantial bodily harm to stick. In fact, prosecutors have the burden at trial to prove beyond a reasonable doubt that the defendant caused substantial bodily harm. Therefore, if a skilled domestic violence defense lawyer can effectively prove that this charge is questionable, you can avoid the harsher penalties.
The state of Nevada generally relies on medical records and expert medical testimony in an effort to sway a judge or jury that the injuries warrant a substantial bodily harm charge resulting in a sentencing enhancement. Nevada judges and juries examine the evidence on a case-by-case basis to determine whether the injury in question falls under the legal definition of substantial bodily harm. Some factors they may take into consideration include the following:
Normally, a battery charge is a misdemeanor unless there is substantial bodily harm or a deadly weapon used during the event. That’s why when it’s alleged that the battery caused substantial bodily harm there is a high likelihood that the charge is enhanced to a felony offense. Although the possible penalties and punishments for these types of charges depend on numerous factors, including whether a deadly weapon was used, there are common consequences that you can expect to face including the following:
• If the domestic violence event resulted in substantial bodily harm (and no deadly weapon was used), then the crime is classified as a Category C Felony with a potential penalty of 1-5 years in prison and a mandatory fine of $10,000.
• If the domestic violence event resulted in substantial bodily harm with a deadly weapon being used, then the crime is classified as a Category B Felony with a potential penalty of 1-15 years in prison and a mandatory fine of $10,000.
There are many ways to combat a domestic violence with substantial bodily harm charge, one of the more common ways being to show the injuries are not substantial. An expert criminal defense attorney will attempt to support this defense by searching for health medical records and medical expert testimonies that back the claim. Your lawyer would also research any past criminal cases that concerned injuries similar to the ones in the present case. If the injuries in those cases were ruled unsubstantial, the prosecutor in your case may be persuaded to lessen the charges. For example, receiving a misdemeanor charge rather than a felony charge. In addition, there are several other common defenses to fight a domestic violence with substantial bodily harm charge including the following:
It’s possible, but charges cannot be dropped right away. Nevada law forbids district attorneys from reducing or dropping domestic violence charges unless it’s been proven that the case is not supported by probable cause or cannot be proved at the time of trial. What this means is that prosecutors cannot mitigate or drop charges before trial compared to other criminal charges like a first DUI offense.
Even if the accuser retracts their claims of domestic violence and wishes to drop charges, the district attorney appointed to the case will not allow the charges to be dropped, at least not right away. It’s common for domestic violence victims to retract their accusations because they feel pressured or fear their abuser. As a result, Nevada prosecutors assume that this may be a possibility in all cases and require that the evidence must be lacking before charges are officially dropped. A skilled Las Vegas domestic violence lawyer can assist with making this clear in court, otherwise, a baseless accusation may become a reality without a proper defense.
Similar to other courts around the country, Nevada courts use a “best interests of the child” standard when deciding custody issues. According to NRS 125C.003, a judge may not find it in the best interest of the child to give custody to someone with a domestic violence conviction.
The Nevada Legislature has recognized the impacts of domestic violence, and the impact that such domestic violence poses to a child’s physical, emotional, and mental health. Castle v. Simmons, 120 Nev. 98, 86 P.3d 1042 (2004). Because of the pervasive impact of domestic violence, the Nevada legislature, in 125C.0035(5), has determined that a Court must presume that any domestic violence negatively impacts the best interests of children, and this Court has previously held that “[t]he court must hear all information regarding domestic violence in order to determine the child’s best interests” Id. at 1047. Further, in considering a motion to change custody, this Court has specifically indicated that the district court is required to presume that the child’s best interests are served by being placed in the care of the non-offending parent. Id. These decisions are on a case-by-case basis, so it’s important that you have an experienced Las Vegas domestic violence attorney in your corner that can fight for you to retain custody of your children.