NRS193.165. Additional penalty: Use of deadly weapon or tear gas in commission of crime; restriction on probation.

      1.  Except as otherwise provided in NRS 193.169, any person who uses a firearm or other deadly weapon or a weapon containing or capable of emitting tear gas, whether or not its possession is permitted by NRS 202.375, in the commission of a crime shall, in addition to the term of imprisonment prescribed by statute for the crime, be punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 20 years. In determining the length of the additional penalty imposed, the court shall consider the following information:

      (a) The facts and circumstances of the crime;

      (b) The criminal history of the person;

      (c) The impact of the crime on any victim;

      (d) Any mitigating factors presented by the person; and

      (e) Any other relevant information.

Ê The court shall state on the record that it has considered the information described in paragraphs (a) to (e), inclusive, in determining the length of the additional penalty imposed.

      2.  The sentence prescribed by this section:

      (a) Must not exceed the sentence imposed for the crime; and

      (b) Runs consecutively with the sentence prescribed by statute for the crime.

      3.  This section does not create any separate offense but provides an additional penalty for the primary offense, whose imposition is contingent upon the finding of the prescribed fact.

      4.  The provisions of subsections 1, 2 and 3 do not apply where the use of a firearm, other deadly weapon or tear gas is a necessary element of such crime.

      5.  The court shall not grant probation to or suspend the sentence of any person who is convicted of using a firearm, other deadly weapon or tear gas in the commission of any of the following crimes:

      (a) Murder;

      (b) Kidnapping in the first degree;

      (c) Sexual assault; or

      (d) Robbery.

      6.  As used in this section, “deadly weapon” means:

      (a) Any instrument which, if used in the ordinary manner contemplated by its design and construction, will or is likely to cause substantial bodily harm or death;

      (b) 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; or

      (c) A dangerous or deadly weapon specifically described in NRS 202.255, 202.265, 202.290, 202.320 or 202.350.

      (Added to NRS by 1973, 1593; A 1975, 720; 1979, 225; 1981, 2050; 1991, 1059; 1995, 1431; 2007, 3188)