Attempted murder in Colorado is trying – and failing – to kill a human being. Attempted first-degree murder is a class 2 felony punishable by up to 48 years in prison. And attempted murder in the second-degree is a class 3 felony punishable by up to 32 years in prison. But charges can be dismissed if the incident was an accident or if the defendant acted in lawful self-defense.
In this article, our Colorado criminal defense attorneys discuss:
- 1. What is the legal definition of attempted murder in Colorado?
- 2. What are the penalties for attempted murder?
- 3. How do you fight attempted murder charges?
- 4. What are the immigration consequences?
- 5. Can the case be sealed?
1. What is the legal definition of attempted murder in Colorado?
Like murder, attempted murder is divided into first-degree and second-degree in Colorado.
Attempted first degree murder occurs when someone with premeditation tries to end someone’s life and fails.1 Examples may include:
- Lunging at someone with a knife with the intention of killing the victim, but the stab wound is not lethal.
- Shooting a gun at someone’s head with the intention of killing the victim, but the bullet misses.
- Strangling a person with the intention to suffocate the victim, but the victim survives.
Attempted first-degree murder also comprises knowingly engaging in conduct which creates a grave risk of death under circumstances showing extreme indifference to the value of human life generally.2 Often these cases involve more than one victim that the defendant did not specifically target. Examples may include:
- Spraying bullets indiscriminately into a crowd, but all the bullets miss or do not cause lethal injuries.
- Poisoning food at a buffet with arsenic, and the patrons get ill but do not die.
- Setting off an explosive in a crowded lobby, but the resultant injuries are not fatal.
Meanwhile, attempted second degree murder includes all other kinds of failed homicides involving no premeditation and no “extreme indifference to the value of human life generally.”3 Therefore it typically involves one targeted victim.
Example: Jack beats his girlfriend within an inch of her life. The only reason she survives is because doctors save her in time. Jack did not intend to kill his girlfriend, but he should have known that his beating was practically certain to cause her death. Therefore, prosecutors would likely bring attempted 2nd-degree murder charges against Jack.
Note that defendants can be guilty of both attempted first-degree murder and attempted second-degree murder arising out of the same act if – while attempting to kill a specific person – the defendant exhibits an extreme indifference to the lives of other people generally.4
See our related article on manslaughter in Colorado (CRS 18-3-104).
2. What are the penalties for attempted murder?
Attempted first-degree murder in Colorado is a class 2 felony. The base penalty is:
- 8 to 24 years in prison (plus five years of mandatory parole) and/or
- Fines of $5,000 to $1 million.
But if the defendant used or possessed a deadly weapon or caused serious bodily injury or death to any other person, then the attempted 1st-degree murder charge becomes a crime of violence. This increases the prison term to 16 to 48 years.
Attempted second-degree murder in Colorado is a class 3 felony. The base penalty is:
- 4 to 12 years in prison (plus five years of mandatory parole) and/or
- Fines of $3,000 to $750,000.
But if the defendant used or possessed a deadly weapon or caused serious bodily injury or death to any other person, then the attempted 2nd-degree murder charge becomes a crime of violence. This increases the prison term to 10 to 32 years.
Note that if the victim dies during the course of the case, the district attorney can drop the attempt element and recharge the defendant with murder. The penalties for first-degree murder are life in Colorado State Prison. And the penalties for second-degree murder are 16 to 48 years in prison.5
3. How do you fight attempted murder charges?
The most effective defense strategies to attempt murder charges depend on the unique facts of the case and available evidence. Ten potential defenses that raise reasonable doubt include:
- The act was accidental.
- The defendant was acting in lawful self-defense or defense of someone else.
- The defendant’s conduct did not create a grave risk of death.
- The victim was falsely accused, such as by a bogus Denver Police Crime Stoppers report.
- The defendant did not knowingly engage in conduct that created a grave risk of death.
- The defendant was the victim of mistaken identity (such as a witness wrongly picking the defendant out of a lineup).
- The defendant was not guilty by reason of insanity.
- The state’s evidence was found through an illegal search and seizure by the police department.
- The police coerced the defendant’s confession.
- The defendant did not succeed in killing the alleged victim because:
- he/she abandoned his/her effort to commit the crime, or
- the dangerous act was done by others, and the defendant prevented the commission of the crime.6
Recall that a key element in certain first-degree attempt murder cases is extreme indifference to human life generally. Therefore, a partial defense to first-degree murder is that the defendant’s potentially lethal conduct was specifically directed towards one particular person. If successful, this argument could persuade the district attorney to drop a first-degree attempted murder charge down to second-degree attempt murder – even possibly third-degree assault (CRS 18-3-204).7
4. What are the immigration consequences?
Attempted homicide is a deportable crime, and non-citizens convicted of it would be removed from the country after serving their attempted murder sentence.8
5. Can the case be sealed?
Attempt murder convictions are unsealable under Colorado law. But if the charges get dismissed, then the defendant can petition for a record seal immediately.9
Anyone facing criminal charges is invited to contact our law firm, serving Denver, Aurora, Colorado Springs, Pueblo, El Paso County, and throughout Colorado.
- CRS 18-3-102. See Kieran Nicholson, Dad who was rescued with his 5-year-old son in Denver is charged with attempted murder, Denver Post (January 25, 2022).
- CRS 18-3-103. See People v. Ornelas-Licano, (2020) 2020 COA 62, 490 P.3d 714.
- Candelaria v. People, (Colo. 2006) 148 P.3d 178. See also People v. Jackson (2020) CO 75, 472 P.3d 553.
- See notes 1 and 3. CRS 18-2-101.
- CRS 18-2-101.
- People v. Perez, (App. 1998) 972 P.2d 1072.
- 8 USC 1227.
- CRS 24-72-701-709.