C.R.S. § 18-3-203 – Second-Degree Felony Assault in Colorado

Colorado Revised Statute § 18-3-203 C.R.S. prohibits second-degree assault, which is a class 4 felony punishable by five to 16 years in state prison. Among the most common types of second-degree assault are intentionally or recklessly injuring someone with a deadly weapon.

In domestic violence (C.R.S. 18-6-801) situations, 2nd-degree assault charges trigger a protective order, and you must surrender your firearms.

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

Second-degree assault is less serious than first-degree assault, which typically results in severe bodily injuries. Meanwhile, second-degree assault is more serious than third-degree assault, which often involves criminal negligence.

In this article, our Colorado criminal defense attorneys will address the following key issues regarding second-degree assault in Colorado law:

• 1. Elements of C.R.S. 18-3-203
• 2. Defenses
• 3. Penalties
• 4. Record Seals
• 5. Related Offenses
• 6. Full Text of Statute
• Frequently Asked Questions
• Additional Reading

1. Elements of C.R.S. 18-3-203

Second-degree assault is a very broad crime that comprises a variety of scenarios. For you to be convicted of second-degree assault in Colorado, prosecutors must prove beyond a reasonable doubt that one of the following eight things occurred:

1. You intentionally caused an injury with a deadly weapon; or
2. You recklessly caused a serious injury with a deadly weapon; or
3. You intentionally hurt someone by suffocating or strangling them; or
4. You caused a serious injury while trying to cause a less serious injury; or
5. You intentionally caused someone to suffer a physical or mental impairment (such as making them unconscious or drugging them without their consent); or
6. You intentionally hurt someone in order to prevent a police officer, firefighter, or EMT from working; or
7. You knowingly used physical force against an emergency responder, prison worker, or court worker; or
8. You tried to infect an emergency responder or prison worker with bodily fluids (such as by throwing waste).¹

A lot of these elements have very precise meanings under state law that may differ from how you use them in everyday language. We discuss these meanings below.

Your State of Mind (“Mens Rea”)

“Intentionally” is the most blameworthy state of mind you can have in assault cases. It means you have a conscious objective to commit the crime.

“Knowingly” is slightly less blameworthy than “intentionally.” It means you were aware that your actions were practically certain to result in an assault, but you did not necessarily premeditate the outcome.”

Finally, “recklessly” means consciously disregarding the substantial risk that your actions would result in an assault. Perhaps you never meant to hurt anyone, but your actions were so careless that you should have known an assault would occur.

Note that if you are charged with assaulting a peace officer, firefighter, or EMT under C.R.S. 18-3-203(1)(c), the prosecution also must prove that:

1. You knew (or reasonably should have known) that you knew what their job was; and
2. You acted with the specific intent to prevent that officer from performing their lawful duties.

If you were simply acting out of a general panic or did not realize the person was an officer performing a duty, we can argue that the specific “intent to prevent” was missing, which could lead to a charge reduction or dismissal.²

Bodily Injury vs. Serious Bodily Injury

A bodily injury is “physical pain, illness, or any impairment of physical or mental condition.”

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.³

For you to be convicted in Colorado of second-degree assault for causing a non-serious injury with a deadly weapon, you must have acted intentionally. Though for you to be convicted of second-degree assault for causing a serious injury with a deadly weapon – the D.A. does not have to prove you acted intentionally: It is enough that they showed you acted recklessly.⁴

“Deadly Weapon” Meaning

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, such as a bottle, pipe, rock, or broken glass.⁵

2. Defenses

Here at Colorado Legal Defense Group, we have represented literally thousands of people charged with violent crimes such as second-degree assault. In our experience, the following three defenses have proven very effective with prosecutors, judges, and juries at getting C.R.S. 18-3-203 charges reduced or dismissed.

1) You Acted in Self-Defense

Fighting back in self-defense is lawful in Colorado as long as:

1. You reasonably believed someone else was about to use unlawful force against you or another person, and
2. You used as much force as you believed necessary to protect yourself or that other person.⁶

Typical evidence in these cases includes surveillance video and eyewitness accounts. There are even medical expert witnesses who can identify whether specific injuries were likely inflicted in self-defense.

2) The Incident Was an Accident

Depending on your 2nd-degree assault case, prosecutors have to prove you acted intentionally, knowingly, or recklessly. Though if we can show the entire incident was an innocent accident or at most criminally negligent, then the charge should be reduced or dismissed.

As with self-defense, the most useful evidence includes any available video and eyewitness testimony. Sometimes it helps when there is no physical evidence at all: Prosecutors often have trouble proving guilt based solely on allegations.

3) You Acted in the Heat of Passion

Colorado’s statute outlining second-degree assault expressly allows for the heat of passion defense. This reduces a conviction from a class 4 felony to a class 6 felony – the least severe type of felony in the state.

Proving a heat of passion defense requires you showing that:

1. The victim did something that was serious and highly provoking, and
2. That provocation would have created an irresistible passion to act in any reasonable person, and
3. There was not enough time (“no interval”) for you to calm down and regain your reason before you caused the injury.⁷

3. What are the penalties?

In Colorado, second-degree assault is both:

• a class 4 felony and
• 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.

However, if you can prove that you acted in the “heat of passion” during the assault, the case is knocked down to a class 6 felony. The presumptive penalties are between 12 and 18 months behind bars and/or $1,000 to $100,000 in fines. Though as a crime of violence, class 6 felonies carry 18 months to four years in prison.⁸

Even a reduced felony charge is serious, though. Any conviction for second-degree assault puts a felony on your criminal background check, strips you of your gun rights, and threatens your residency status if you are a non-citizen.

Having a violent crime on your record can also impede your ability to get an education, a job, a professional license, housing, or a loan.

Mandatory Consecutive Sentencing for Prisoners 

If a second-degree assault occurs while you were an inmate at a jail, prison, or juvenile detention facility – and the victim was an office or judge – then your sentence must run consecutively to (after) the sentence you are currently serving.

A Colorado judge will only consider a concurrent (simultaneous) sentence if the victim was an employee of the Youth Services Division in the Department of Human Services.⁹

4. Record Seals

In Colorado, you can petition for a criminal record seal of a second-degree assault conviction three years after the case ends. Though there is no waiting period if your case gets dismissed.¹⁰

5. Related Offenses

The following table compares the elements and penalties of all of Colorado’s assault crimes:

Colorado Crime	C.R.S. Code	Elements	Penalties
First-Degree Assault	C.R.S. 18-3-202	Intentionally and seriously hurting another person by means of physical force, often with a deadly weapon	Class 3 felony:  10 to 32 years in prison and $3,000 to $750,000
Second-Degree Assault	C.R.S. 18-3-203	Intentionally or recklessly injuring another person with a deadly weapon	Class 4 felony:  5 to 16 years in prison and $2,000 to $500,000
Third-Degree Assault	C.R.S. 18-3-204	Knowingly, recklessly, or with criminal negligence injuring another person	Class 1 misdemeanor:  Up to 18 months in jail and/or $1,000
Vehicular Assault (Reckless Driving)	C.R.S. 18-3-205	Reckless driving that results in serious bodily injury to another person	Class 5 felony:  1 to 3 years in prison and $1,000 to $100,000
Vehicular Assault (DUI)	C.R.S. 18-3-205	Intoxicated driving that results in serious bodily injury to another person	Class 4 felony:  2 to 6 years in prison and $2,000 to $500,000

Note that assault is an entirely separate offense from menacing (C.R.S. 18-3-206), which is putting someone in fear of imminent serious bodily harm. No physical contact is necessary. An example is holding a clenched fix by a person’s jaw and threatening to punch them.

6. Full Text of Statute

C.R.S. 18-3-203 – Assault in the Second Degree

(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, an actor with intent to infect, injure, or harm 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 subsection (2)(b.5) of this section, 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 subsection (1)(b), (1)(c.5), (1)(d), or (1)(g) of this section, the court shall sentence the defendant 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.
(d) For purposes of determining sudden heat of passion pursuant to subsection (2)(a) of this section, a defendant’s act does not constitute an act performed upon a sudden heat of passion if it results solely from the discovery of, knowledge about, or potential disclosure of the victim’s actual or perceived gender, gender identity, gender expression, or sexual orientation, including but not limited to under circumstances in which the victim made an unwanted nonforcible romantic or sexual advance toward the defendant.
(3) Repealed.

Frequently Asked Questions

Is it 2nd-degree assault to drug someone if they are not physically injured?

Yes. Under C.R.S. 18-3-203(1)(e), you do not need to cause a “wound” or “broken bone” to be charged with a Colorado felony. If you intentionally administer a drug or substance to another person without their consent—and it causes them to experience stupor, unconsciousness, or any other mental or physical impairment—it is prosecuted as second-degree assault. This applies to any substance capable of producing that harm when used for a non-medical purpose.

Many people mistakenly believe that “spiking” a drink or tricking someone into consuming a substance is a minor prank or a misdemeanor. However, if the substance causes the victim to lose consciousness or become physically impaired, you face felony assault charges in the 2nd-degree.

What does the prosecution have to prove for a “drugging” assault charge?

To secure a 2nd-degree assault conviction under C.R.S. 18-3-203(1)(e), the District Attorney must prove three elements beyond a reasonable doubt:

1. Specific Intent: You acted with the conscious objective to cause stupor or impairment; and
2. Lack of Consent: The victim did not agree to take the substance; and
3. Non-Medical Purpose: The substance was not administered for a legitimate therapeutic or medical reason.

Do I have to take a medical test after a 2nd-degree assault charge?

Yes, if there is evidence that during the incident your bodily fluids (such as blood, saliva, or vomit) made contact with a detention center worker, peace officer, fireman, or emergency medical care/service provider. You will be tested for communicable diseases.

By law, these results are kept highly confidential. They are closed to the general public and are not part of the open court record. However, the results must be disclosed to the victim or the first responder who came into contact with the fluid so they can seek appropriate medical treatment.

If you choose to submit to testing voluntarily before the court forces you to do so, your cooperation can be used as a mitigating factor during sentencing. This “tactical move” can show the judge and the prosecutor that you are taking responsibility for the safety of others, which may help your attorney negotiate a more favorable outcome or a lighter sentence.

Note that if you are convicted, the Colorado court can order you to pay for the medical tests and any necessary treatment for the victim or officer involved. This is considered part of your financial obligations to the court, similar to restitution or fines.

What are the Colorado jury instructions for 2nd-degree assault?

The exact jury instructions depend on which subsection of C.R.S. 18-3-203 you are accused of committing. The jury is given a specific checklist. For a standard second-degree assault charge involving a deadly weapon, the prosecutor must prove every “link in the chain” beyond a reasonable doubt, including:

1. You were in Colorado; and
2. You acted intentionally; and
3. Your goal was to cause bodily injury; and
4. You actually caused that injury.

As long as there is reasonable doubt as to just one of these elements, the jury is obligated to find you not guilty. Our job as criminal defense attorneys is to find the weakest links in the jury instructions and identify to the jury which part of the prosecution’s story is the shakiest.

For example, we may concede that an injury happened but fight the “deadly weapon” element, or we may admit the act occurred but prove your “intent” was not to cause injury. Attacking a specific element is much more effective than making a general plea for mercy.

What if the jury instructions are wrong?

Jury instructions are the “map” the jury uses to reach a verdict. If a judge gives the jury instructions that misstate Colorado law—such as lowering the burden of proof or confusing the definition of “intentionally”—it can be grounds for an immediate appeal or a new trial. This is why having an attorney who understands the technical “breakouts” of these instructions is vital to your defense.

Additional Reading

For more in-depth information, refer to these informational articles:

• Assault and Battery by the Reckless Motorist – American Institute of Criminal Law & Criminology.
• Provocation–Assault and Battery as Sufficient Provocation to Reduce an Intentional Homicide to Manslaughter – Kentucky Law Journal.
• Threats as Criminal Assault – Cleveland State Law Review.

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