Under CRS 18-3-202, Colorado defines first-degree assault as intentionally and seriously hurting another person by means of physical force, often with a deadly weapon. As the most serious assault crime, first-degree assault is a class 3 felony punishable by 10 to 32 years in prison and $3,000 to $750,000 in fines.
Examples of first-degree assaults under CRS 18-3-202 include the following situations:
- Mickey shoots his sister in the hand with a pistol during a heated argument,
- Abigail drives her car into a crowd of guests at a backyard party after being told to leave, and
- Phil points a gun at a firefighter at the scene of a house fire. He tells the firefighter to hand over his wallet or else he will shoot.
There are three degrees of assault in Colorado:
- First-degree assault (CRS 18-3-202),
- Second-degree assault (CRS 18-3-203), and
- Third-degree assault (CRS 18-3-204).
The 2nd- and 3rd degrees of assault comprise less intentional conduct and less severe injuries.
Here, the Denver Colorado criminal defense lawyers at the Shouse Law Office delve into:
- 1. What is first-degree assault in Colorado?
- 2. What are the legal defenses under CRS 18-3-202?
- 3. What are the penalties?
- 4. Related offenses to CRS 18-3-202
1. What is first-degree assault in Colorado?
First-degree assault in Colorado is described in CRS 18-3-202.1 It outlaws:
- Intending to cause, and then causing, a “serious bodily injury” to someone,2
- Intentionally disfiguring another person “seriously and permanently,”3
- Destroying, amputating, or permanently disabling a body part or organ,4
- Seriously hurting someone while knowingly doing something that “creates a grave risk of death… under circumstances manifesting extreme indifference to the value of human life,”5
- Using a deadly weapon to threaten serious bodily harm on a police officer,6 and
- Intentionally strangling or suffocating someone to cause serious bodily injury.7
The two key pieces to whether an assault amounts to a first-degree assault are:
- The severity of the injuries, and
- If a deadly weapon was used.8
1.1 What is a serious bodily injury?
A serious bodily injury is one of the key components of first-degree assault. Prosecutors in Colorado have to prove this component of assault beyond a reasonable doubt. A “serious bodily injury” is different from a “bodily injury.” Generally, assaults in the first degree involve serious injuries. Assaults in the second degree involve non-serious injuries.
A “serious bodily injury” means certain types of wounds or injuries. They have to “involve a substantial risk of death, serious permanent disfigurement, or protracted loss or impairment of the function of any part or organ of the body.”9 It can also include broken or fractured bones.10 Second- or third-degree burns are serious injuries, as well.11
Importantly, the substantial risk of death or loss of function does not have to happen right away. It can happen at a later time, as well.12
Examples of a serious bodily injury could include:
- A small cut from a stab wound that caused life-threatening internal bleeding. The victim needed to have his spleen removed,13
- A gunshot wound to the arm that requires amputation,
- Brain damage caused by a choke-hold, or
- A dart thrown into someone’s eye that makes them blind.
1.2 What is a deadly weapon?
Many provisions of Colorado’s first-degree assault law require the means of a deadly weapon, which includes a:
- Firearm, regardless of whether it is loaded or not,
- Bludgeon, or
- Anything that can cause death or serious bodily injury when used in the manner it was used.14
2. What are the legal defenses under CRS 18-3-202?
Four common legal defenses to an allegation of first-degree assault in Colorado are:
- Lack of intent (criminal negligence),
- Lack of a serious bodily injury, and
- The heat of passion.
Some of these assault defenses aim to reduce the charges from a first-degree to a lesser degree. Others aim to reduce the penalties of a conviction. Others aim for an outright acquittal.
2.1 Self-defense or defense of others
Common defenses against first-degree assault charges under CRS 18-3-202 are self-defense and the defense of others. If successful, these defense arguments can make the assault a justifiable one that leads to an acquittal.
In general, self-defense requires showing that:
- You believed the other person was about to use unlawful force against you,
- You used as much force as you believed was necessary to protect yourself, and
- Both of those beliefs were objectively reasonable.
The defense of others strategy is only a little different. Rather than self-defense, you were defending another person.
Both of these defense strategies can be tricky.
2.2 Lack of intent
Prosecutors have to prove that you intended to cause a serious injury. They have to prove this beyond a reasonable doubt. Evidence that you did not intend to hurt someone will help. Signs that it was an accident can defend against an assault charge. Evidence that you just made a mistake can help, too.
It can also help to show you did not intend to seriously hurt someone. If you can prove that you did not want to hurt the victim badly, it can lead to lower charges. Assault cases in the second-degree come with lower penalties.
2.3 No serious bodily injury
CRS 18-3-202 charges tend to require a serious bodily injury. In many cases, the injuries were not bad enough.
If you can prove the injury was not bad, it can reduce the penalties of a conviction.
2.4 The heat of passion defense
CRS 18-3-202 expressly allows defendants to claim that they only acted in the sudden heat of passion.15
Proving that you only acted in a heat of passion, though, requires proof of all of the following:
- The alleged victim seriously provoked you,
- That provocation would have excited an irresistible passion in any reasonable person, and
- There was no sufficient interval between the provocation and the injury for you to calm down.
Showing that you only acted in the heat of passion is not a complete defense. It only reduces a sentence from a Class 3 to a Class 5 felony.16
3. What are the penalties?
First-degree assault is typically a Class 3 felony (felony assault) in Colorado that carries between ten and 32 years in a state prison detention facility and a minimum fine of $3,000.17
Proof that the assault happened in the heat of passion can reduce the severity of an offense to a Class 5 felony, which comes with between one and three years in the Department of Corrections and a minimum fine of $1,000.18
All felonies, though, come with a long list of other consequences. Some can change your voting rights. Some can hurt your Second Amendment rights. Some can make it more difficult to get a job.
4. Related offenses to CRS 18-3-202
There are several offenses that are related to the crime of assault in the first degree in the state of Colorado.
Some are lesser-included offenses that are often charged in the alternative. Prosecutors file both of these charges. They then pursue the less serious version if the case does not turn their way.
Other related offenses often accompany first-degree assault charges. Most of these similar charges happen in similar circumstances. Still others are sentence enhancements.
These related offenses include:
- Sexual assault (CRS 18-3-402). This is forcing sexual intercourse onto someone else without consent.
- Second-degree assault (CRS 18-3-203). This covers “bodily injuries” rather than “serious bodily injuries.”19
- Menacing (CRS 18-3-206). This prohibits putting someone in fear of imminent and serious bodily injury. It can be a misdemeanor.20 and
- Domestic violence (CRS 18-6-801). This is a penalty enhancement. Crimes committed against someone in an intimate relationship with the defendant get higher penalties.21
- Colorado Revised Statute § 18-3-202 (criminal code):(1) A person commits the crime of assault in the first degree if:(a) With intent to cause serious bodily injury to another person, he causes serious bodily injury to any person by means of a deadly weapon; or(b) With intent to disfigure another person seriously and permanently, or to destroy, amputate, or disable permanently a member or organ of his body, he causes such an injury to any person; or(c) Under circumstances manifesting extreme indifference to the value of human life, he knowingly engages in conduct which creates a grave risk of death to another person, and thereby causes serious bodily injury to any person; or
(e) With intent to cause serious bodily injury upon the person of a peace officer, firefighter, or emergency medical service provider, he or she threatens with a deadly weapon a peace officer, firefighter, or emergency medical service provider engaged in the performance of his or her duties, and the offender knows or reasonably should know that the victim is a peace officer, firefighter, or emergency medical service provider acting in the performance of his or her duties; or
(e.5) With intent to cause serious bodily injury upon the person of a judge of a court of competent jurisdiction or an officer of said court, he threatens with a deadly weapon a judge of a court of competent jurisdiction or an officer of said court, and the offender knows or reasonably should know that the victim is a judge of a court of competent jurisdiction or an officer of said court; or
(f) While lawfully confined or in custody as a result of being charged with or convicted of a crime or as a result of being charged as a delinquent child or adjudicated as a delinquent child and with intent to cause serious bodily injury to a person employed by or under contract with a detention facility, as defined in section 18-8-203 (3), or to a person employed by the division in the department of human services responsible for youth services and who is a youth services counselor or is in the youth services worker classification series, he or she threatens with a deadly weapon such a person engaged in the performance of his or her duties and the offender knows or reasonably should know that the victim is such a person engaged in the performance of his or her duties while employed by or under contract with a detention facility or while employed by the division in the department of human services responsible for youth services. A sentence imposed pursuant to this paragraph (f) shall be served in the department of corrections and shall run consecutively with any sentences being served by the offender. A person who participates in a work release program, a furlough, or any other similar authorized supervised or unsupervised absence from a detention facility, as defined in section 18-8-203 (3), and who is required to report back to the detention facility at a specified time shall be deemed to be in custody.
(g) With the intent to cause serious bodily injury, he or she applies sufficient pressure to impede or restrict the breathing or circulation of the blood of another person by applying such pressure to the neck or by blocking the nose or mouth of the other person and thereby causes serious bodily injury.
(2) (a) If assault in the first degree is committed under circumstances where the act causing the injury is performed upon a sudden heat of passion, caused by a serious and highly provoking act of the intended victim, affecting the person causing the injury sufficiently to excite an irresistible passion in a reasonable person, and without an interval between the provocation and the injury sufficient for the voice of reason and humanity to be heard, it is a class 5 felony.
(b) If assault in the first degree is committed without the circumstances provided in paragraph (a) of this subsection (2), it is a class 3 felony.
(c) If a defendant is convicted of assault in the first degree pursuant to subsection (1) of this section, the court shall sentence the defendant in accordance with the provisions of section 18-1.3-406.
- CRS § 18-3-202(1)(a).
- CRS § 18-3-202(1)(b).
- CRS § 18-3-202(1)(b).
- CRS § 18-3-202(1)(c).
- CRS § 18-3-202(1)(e)-(f).
- CRS § 18-3-202(1)(g).
- Stroup v. People, 656 P. 2d 680, 685 (1983).
- People v. Martinez, 540 P. 2d 1091, 1092 (1975).
- CRS § 18-1-901(3)(p).
- See note 10.
- See note 10.
- See note 9.
- CRS § 18-1-901(3)(e).
- CRS § 18-3-202(2)(a).
- People v. Pennese, 830 P. 2d 1085 (Colo. App. 1991).
- CRS § 18-3-202(2)(b). First-degree assault is a crime of violence.
- See note 15.
- CRS § 18-3-203.
- CRS § 18-3-206.
- CRS § 18-6-801.