Under CRS § 18-3-203, you commit the Colorado crime of second-degree assault if you intentionally or recklessly cause injury to another person with a deadly weapon. A conviction is a class 4 felony punishable by a prison sentence of 5 to 16 years.
Second-degree assault is less serious than first-degree assault (CRS 18-3-202), which typically results in severe bodily injuries. And second-degree assault is more serious than third-degree assault (CRS 18-3-204), which typically involves negligent accidents.
In this article, our Denver Colorado criminal defense attorneys will explain:
- 1. What is second-degree assault in Colorado under CRS 18-3-203?
- 2. What are the legal defenses to an allegation of second-degree assault?
- 3. What are the penalties for a second-degree assault conviction in Colorado?
- 4. Related offenses to second-degree assault
1. What is second-degree assault in Colorado under CRS 18-3-203?
The Colorado crime of second-degree assault comprises the following eight behaviors.1
- Intentionally causing an injury with a deadly weapon,2
- Recklessly causing a serious injury with a deadly weapon,3
- Intentionally hurting someone to prevent a police officer, firefighter, or EMT from working,4
- Intentionally causing someone else to suffer a physical or mental impairment. This includes making them unconscious or drugging them without their consent,5
- Knowingly using physical force against an emergency responder, prison worker, or court worker,6
- Trying to infect an emergency responder or prison worker by using bodily fluids,7
- Causing a serious injury while trying to cause a less serious injury, and8
- Intentionally hurting someone by suffocating or strangling them.9
Examples of second-degree assault in Colorado are:
- Marv pistol-whipping his boss after getting fired from his job,
- Paul shoving a police officer, and
- Lacey pushing Mark down a short flight of steps, causing him to suffer brain damage
1.1. What is the difference between a bodily injury and a serious bodily injury?
A bodily injury is “physical pain, illness, or any impairment of physical or mental condition.”10
In contrast, a serious bodily injury involves substantial risk of death. It can cause serious and permanent disfigurement and can involve the impairment of a body part or an internal organ. A serious bodily injury can also include broken or fractured bones or burns in the second or third degree.11
Non-serious injuries tend to be charged as second-degree assault under CRS 18-3-203. Serious bodily injuries tend to lead to first-degree assault charges, which may carry twice the prison time as second-degree assault.
1.2. What is a deadly weapon?
In some cases, the use of a deadly weapon is a big part of a second-degree assault charge. A deadly weapon can be a:
- Firearm, even if it is not loaded,
- Knife or another blade,
- Bludgeon or club, including a baseball bat, or
- Anything that can be used to cause death or a serious bodily injury.12
Example: Claire is driving on the highway. She recklessly takes her eyes of the road for over ten seconds to do her makeup. She causes a car accident that paralyzes Fred. The car in this assault case could be a deadly weapon. Claire could be charged with second-degree assault.
2. What are the legal defenses to an allegation of second-degree assault?
There are numerous legal defenses against a second-degree assault charge. Some of the most common include:
- Self-defense or defense of others,
- Lack of intent, and
- The heat of passion.
2.1. Self-defense or the defense of others
It can be justifiable to intentionally hurt someone to defend yourself or someone else. Proving this legal defense requires evidence that you:
- Believed someone else was about to use unlawful force against you or another person, and
- Used as much force as you believed necessary to protect yourself or that other person.
Additionally, those beliefs have to be deemed reasonable for this defense strategy to work.
2.2. Lack of intent to commit an assault
In most cases, second-degree assault requires intentional conduct. At the very least, it requires you to be acting recklessly with a deadly weapon. So you can defend against a second-degree assault charge by showing the injury was a negligent accident or mistake.
2.3. Heat of passion
Colorado’s statute outlining second-degree assault expressly allows for the heat of passion defense.13 This reduces a conviction from a class 4 felony to a class 6 felony – the least severe type of felony in Colorado.
Proving a heat of passion defense requires that:
- The victim did something that was highly provoking,
- That provocation would have created an irresistible passion to act in any reasonable person, and
- There was not enough time for you to calm down before you caused the injury.
3. What are the penalties for a second-degree assault conviction in Colorado?
Second-degree felony assault is a class 4 felony and also a crime of violence (COV) (in most circumstances). As a COV, second-degree assault carries mandatory sentencing of five to 16 years in prison. This is harsher than the presumptive class 4 felony penalty range of two to six years. The judge can also impose a fine of $2,000 to $500,000.
But if you can prove that you were in the heat of passion during the assault, the case becomes a class 6 felony. The penalties are between 12 and 18 months behind bars and/or $1,000 to $100,000 in fines.
Even a reduced felony charge is serious, though. A conviction for second-degree assault puts a felony on your criminal background. The blemish can impact your Second Amendment rights. It can also make it much more difficult to get a job.14
4. Related offenses to second-degree assault
Other criminal offenses that are often filed with Colorado assault charges are:
- Menacing (CRS 18-3-206). This makes it a crime to make someone afraid that they are about to get seriously hurt,15 and
- Domestic violence (CRS 18-6-801). This can enhance the sentence of someone accused of second-degree assault. Domestic violence requires an intimate relationship between the alleged victim and the defendant.1
Legal References:
- C.R.S. § 18-3-203. The language of the code section states that:
(1) A person commits the crime of assault in the second degree if:(a) Repealed.(b) With intent to cause bodily injury to another person, he or she causes such injury to any person by means of a deadly weapon; or(c) With intent to prevent one whom he or she knows, or should know, to be a peace officer, firefighter, emergency medical care provider, or emergency medical service provider from performing a lawful duty, he or she intentionally causes bodily injury to any person; or(c.5) With intent to prevent one whom he or she knows, or should know, to be a peace officer, firefighter, or emergency medical service provider from performing a lawful duty, he or she intentionally causes serious bodily injury to any person; or(d) He recklessly causes serious bodily injury to another person by means of a deadly weapon; or(e) For a purpose other than lawful medical or therapeutic treatment, he intentionally causes stupor, unconsciousness, or other physical or mental impairment or injury to another person by administering to him, without his consent, a drug, substance, or preparation capable of producing the intended harm; or(f) While lawfully confined or in custody, he or she knowingly and violently applies physical force against the person of a peace officer, firefighter, or emergency medical service provider engaged in the performance of his or her duties, or a judge of a court of competent jurisdiction, or an officer of said court, or, 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, he or she knowingly and violently applies physical force against a person engaged in the performance of his or her duties while employed by or under contract with a detention facility, as defined in section 18-8-203 (3), or while 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, and the person committing the offense knows or reasonably should know that the victim is a peace officer, firefighter, or emergency medical service provider engaged in the performance of his or her duties, or a judge of a court of competent jurisdiction, or an officer of said court, or 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; except that, if the offense is committed against a person employed by the division in the department of human services responsible for youth services, the court may grant probation or a suspended sentence in whole or in part, and the sentence may run concurrently or consecutively with any sentences being served. 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 is deemed to be in custody. (f.5) (I) While lawfully confined in a detention facility within this state, a person with intent to infect, injure, harm, harass, annoy, threaten, or alarm a person in a detention facility whom the actor knows or reasonably should know to be an employee of a detention facility, causes such employee to come into contact with blood, seminal fluid, urine, feces, saliva, mucus, vomit, or any toxic, caustic, or hazardous material by any means, including but not limited to throwing, tossing, or expelling such fluid or material. (II) Repealed. (III) (A) As used in this paragraph (f.5), “detention facility” means any building, structure, enclosure, vehicle, institution, or place, whether permanent or temporary, fixed or mobile, where persons are or may be lawfully held in custody or confinement under the authority of the state of Colorado or any political subdivision of the state of Colorado.(B) As used in this paragraph (f.5), “employee of a detention facility” includes employees of the department of corrections, employees of any agency or person operating a detention facility, law enforcement personnel, and any other persons who are present in or in the vicinity of a detention facility and are performing services for a detention facility. “Employee of a detention facility” does not include a person lawfully confined in a detention facility.
(g) With intent to cause bodily injury to another person, he or she causes serious bodily injury to that person or another; or
(h) With intent to infect, injure, or harm another person whom the actor knows or reasonably should know to be engaged in the performance of his or her duties as a peace officer, a firefighter, an emergency medical care provider, or an emergency medical service provider, he or she causes such person to come into contact with blood, seminal fluid, urine, feces, saliva, mucus, vomit, or any toxic, caustic, or hazardous material by any means, including by throwing, tossing, or expelling such fluid or material; or
(i) With the intent to cause 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 bodily injury.
(2) (a) If assault in the second 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 6 felony.
(b) If assault in the second degree is committed without the circumstances provided in paragraph (a) of this subsection (2), it is a class 4 felony.
(b.5) Assault in the second degree by any person under subsection (1) of this section without the circumstances provided in paragraph (a) of this subsection (2) is a class 3 felony if the person who is assaulted, other than a participant in the crime, suffered serious bodily injury during the commission or attempted commission of or flight from the commission or attempted commission of murder, robbery, arson, burglary, escape, kidnapping in the first degree, sexual assault, sexual assault in the first or second degree as such offenses existed prior to July 1, 2000, or class 3 felony sexual assault on a child.
(c) (I) If a defendant is convicted of assault in the second degree pursuant to paragraph (c.5) of subsection (1) of this section or paragraph (b.5) of this subsection (2), except with respect to sexual assault or sexual assault in the first degree as it existed prior to July 1, 2000, the court shall sentence the defendant in accordance with the provisions of section 18-1.3-406. A defendant convicted of assault in the second degree pursuant to paragraph (b.5) of this subsection (2) with respect to sexual assault or sexual assault in the first degree as it existed prior to July 1, 2000, shall be sentenced in accordance with section 18-1.3-401 (8) (e) or (8) (e.5).
(II) If a defendant is convicted of assault in the second degree pursuant to paragraph (b), (c), (d), or (g) of subsection (1) of this section, the court shall sentence the offender in accordance with section 18-1.3-406; except that, notwithstanding the provisions of section 18-1.3-406, the court is not required to sentence the defendant to the department of corrections for a mandatory term of incarceration.
(3) Repealed.
- C.R.S. § 18-3-203(1)(d).
- C.R.S. § 18-3-203(1)(c)-(c.5).
- C.R.S. § 18-3-203(1)(e).
- C.R.S. § 18-3-203(1)(f).
- C.R.S. § 18-3-203(1)(f.5) and C.R.S. § 18-3-203(1)(h).
- C.R.S. § 18-3-203(1)(g).
- C.R.S. § 18-3-203(1)(i).
- C.R.S. § 18-1-901(3)(c). People v. Lee, (2019) COA 130, 477 P.3d 732.
- People v. Martinez, (1975) 540 P. 2d 1091, 1092 and C.R.S. § 18-1-901(3)(p).
- C.R.S. § 18-1-901(3)(e).
- C.R.S. § 18-3-203(2)(a).
- C.R.S. § 18-3-202.
- People v. Rigsby, (2020) CO 74, 471 P.3d 1068. People v. Denhartog, (2019) COA 23, 452 P.3d 148.
- C.R.S. § 18-3-206.
- C.R.S. § 18-6-801.