Third Degree Assault in Colorado – C.R.S. § 18-3-204

Colorado Revised Statute § 18-3-204 C.R.S. prohibits third-degree assault, which is the state’s least serious assault crime.

Third-degree assault comprises the knowing, reckless, or criminally negligent infliction of injuries, including physical pain. It also comprises flinging bodily fluids or toxic substances onto police, even if they sustain no injuries.

Whereas 1st-degree assault and 2nd-degree assault are always felonies in Colorado, 3rd-degree assault is an extraordinary risk class 1 misdemeanor. It is punishable by:

• up to 18 months in jail (or probation) and/or fines of up to $1,000, and
• restitution for any medical bills.

If the third-degree assault allegedly involved domestic violence, the judge will also issue a protection order and require you to surrender your firearms. You may also have to complete a treatment program.

Examples of 3rd-degree assault include:

• Amy walks while texting, and in her distraction, she collides with another pedestrian.
• Todd throws a baseball towards Fred, which bruises his arm.
• Tara shows her friend her pistol, which Tara wrongly thinks is unloaded. Tara gestures wildly, causing the gun to go off. The bullet grazes her friend.

In this article, our Denver criminal defense attorneys will address the following key issues regarding third-degree assault in Colorado.

• 1. Elements of C.R.S. 18-3-204
• 2. Defenses
• 3. Record Seals
• 4. Related Crimes
• Frequently Asked Questions
• Additional Reading

1. Elements of C.R.S. 18-3-204

For you to be convicted of third-degree assault in Colorado, prosecutors must prove beyond a reasonable doubt that one of the following three scenarios occurred:

• You knowingly or recklessly caused bodily injury to another person; or
• You caused bodily injury to another person by means of a deadly weapon, and you did so with criminal negligence; or
• You caused someone who you knew was a peace officer, firefighter, or emergency medical care/service provider to come into contact with bodily fluid/waste or a toxic, caustic, or hazardous material, and you did so intending to harass, annoy, threaten, or alarm them.¹

We discuss these elements in detail below.

“Bodily Injury” Meaning

Third-degree assault charges under C.R.S. 18-3-204 involve bodily injuries, but not serious bodily injuries. Serious bodily injuries include:

• Broken or fractured bones,
• Second-degree or third-degree burns,
• A substantial risk of death,
• Serious and permanent disfigurements,
• Loss of a body part, and
• A long-term loss of body function.²

If the injuries are this serious, an assault can be charged in the second or even the first degree. When the injuries are not this serious, the assault would be charged in the third degree.

“Knowingly” Meaning

C.R.S. 18-3-204 prohibits knowingly causing an injury to someone else. This means you were aware that what you were doing was “practically certain to cause the result.”³

Doing something knowingly falls short of doing it intentionally. However, it is more serious than just taking a heedless risk.

Example: Danielle is angry at her workers. She throws her office chair out her window on the third floor. Jeff is walking by on the sidewalk. He gets hit but only suffers a bruised shoulder.

“Recklessly” Meaning

C.R.S. 18-3-204 also prohibits recklessly causing an injury. Reckless conduct means consciously disregarding the substantial risk that a specific result will happen.⁴

If you are acting recklessly, you are aware of the dangers of what you are about to do. However, you choose to ignore those dangers.

Example: Bob is late to work and careens down his driveway at 30 miles per hour. He is unable to stop before hitting Lucy, who was jogging on the sidewalk.

“Criminal Negligence” Meaning

In Colorado, hurting someone with criminal negligence is third-degree assault if it is done with a deadly weapon.

Criminal negligence is the failure to perceive the substantial risk that a certain result will occur. This failure to notice the risk has to be a “gross deviation” from what a reasonable person would notice.⁵

Criminal negligence is worse than just acting negligently or by accident. Criminal negligence includes a nearly blind ignorance to the risks.

Example: Ralph is at the shooting range. He starts shooting his rifle into the air to see if he can hit a cloud. One of the bullets grazes Beatrice’s arm in the next town.

Note that deadly weapons comprise guns, knives, or any other object capable of killing or inflicting substantial bodily harm such as a brick, pipe, shattered glass, etc.

It may be possible to get probation in lieu of jail for 3rd-degree assault.

2. Defenses

Here at Colorado Legal Defense Group, we have represented literally thousands of people charged with assault. In our experience, the following three defenses have proven very effective with prosecutors, judges, and juries at getting C.R.S. 18-3-204 charges reduced or dismissed.

1) You Acted in Self-Defense

When claiming self-defense, you are not denying you touched or even injured someone. Instead, you are claiming your actions were lawfully justified under the circumstances.

Proving that third-degree assault was done in self-defense requires showing that:

1. You thought the other person was about to use unlawful force against you or someone else, and
2. You used as much force as you thought was necessary to protect yourself or someone else.

Both of those thoughts need to be reasonable for a self-defense claim to work.

2) The Incident Was an Accident

Claiming “accident” is solid a defense to third-degree assault charges if prosecutors cannot show that your actions were knowing, reckless, or criminally negligent.

Accident is a useful defense because there is no way for prosecutors to get inside of your head and know what you were thinking. Typical evidence in these cases includes surveillance video and eyewitness accounts.

3) You Were Falsely Accused

We have seen many cases where people were falsely accused of third-degree assault by someone out of:

• anger,
• revenge,
• a misunderstanding, or
• an effort to gain leverage in a contentious divorce or child custody case.

In these cases, we pore over the accuser’s recorded communications in search of an ulterior motive to falsely accuse you. We can even use expert medical witnesses to testify that the accuser’s injuries appear self-inflicted.

Once we show the accuser lacks credibility, the D.A. may be forced to drop your charge (and then prosecute your accuser for filing a false report.)

Third-degree assault involves knowingly, recklessly, or negligently causing a bodily injury.

3. Record Seals

In Colorado, you can get a criminal record seal of a third-degree assault conviction three years after the case ends. Though if your case gets dismissed, then there is no waiting period to petition for a seal.⁶

4. Related Crimes

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

Note that assault is often confused with the Colorado crime of menacing. Menacing is knowingly making someone fear they are about to suffer a serious injury, such as holding a fist up to someone’s face.⁷

Self-defense is a common defense to C.R.S. 18-3-204 charges.

Frequently Asked Questions

What’s the difference between third-degree assault and more serious assault charges?

Third-degree assault involves bodily injury that causes physical pain but is not serious. More serious assault charges (first and second-degree) involve severe injuries like broken bones, burns, permanent disfigurement, or loss of body parts. The more severe the injury, the higher the assault degree and penalties.

How long could I go to jail for third-degree assault in Colorado?

Third-degree assault is a class 1 misdemeanor punishable by up to 18 months in jail and/or fines up to $1,000. However, you may be able to get probation instead of jail time, and the penalties can be enhanced if domestic violence is involved.

Can I be charged with third-degree assault even if I did not mean to hurt someone?

Yes. You can be charged if you acted knowingly (aware your actions would likely cause injury), recklessly (ignoring obvious risks), or with criminal negligence (failing to notice substantial risks when using a deadly weapon). Even accidental harm can lead to charges if your behavior was careless enough.

When can I get my third-degree assault conviction sealed from my record?

You can petition to seal a third-degree assault conviction three years after your case ends. However, if your case gets dismissed (charges dropped), there’s no waiting period and you can petition for a seal immediately.

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.

Legal References: