For certain crimes of violence in Colorado, you will face significantly more jail or prison time if the prosecutor can show that the victim in the case suffered serious bodily injury. For this penalty enhancement to apply, the state must both allege and prove up the serious bodily injury.
Serious bodily injury involves substantial risk of:
- serious permanent disfigurement, or
- Protracted loss or impairment of the function of any part or organ of the body.
Serious bodily harm can also involve:
- broken bones,
- fractures, or
- second or third-degree burns.
Our Denver Colorado criminal defense lawyers will answer the following questions in this article:
- 1. How does Colorado criminal law define bodily injury?
- 2. How does serious bodily injury enhance an assault charge?
- 3. How does the prosecutor use this sentencing enhancement?
- 4. Are there defenses to serious bodily injury?
- Additional reading
1. How does Colorado criminal law define bodily injury?
Section 18.1.901(2)(c), C.R.S. states that:
“Bodily injury” means physical pain, illness, or any impairment of physical or mental condition. 1
The definition of serious bodily injury, according to section 18.1.901(2)(p), C.R.S., goes further:
“Serious bodily injury” means bodily injury which, either at the time of the actual injury or at a later time, involves a substantial risk of death, a substantial risk of serious permanent disfigurement, a substantial risk of protracted loss or impairment of the function of any part or organ of the body, or breaks, fractures, a penetrating knife or penetrating gunshot wound, or burns of the second or third degree.2
What is the difference between bodily injury and serious bodily injury?
Reading the above definitions, you will note a very clear distinction: one of degree. Colorado criminal law concurs.3 On one side of the spectrum is fear of a bodily injury and on the other end of the spectrum is death. Knowing where bodily injury ends and when serious bodily injury begins is sometimes difficult.
As defined, the term “serious bodily injury” can still be vague or confusing. The definition of “serious bodily injury” has been described as subjective and defined by undefined terms. As such, a defendant in a criminal case claimed the term’s use was unconstitutional. The Court disagreed, affirming the definition is not facially unconstitutionally vague.4 So, what does it mean? Where does serious bodily injury begin on the spectrum so that a district attorney can use it against an alleged offender to enhance the penalties?
What does serious bodily injury mean?
The terms used to define “serious bodily injury” must also be understood. This provides an understanding of what serious bodily injury actually encompasses and, thus, what you should expect if you have been accused of serious bodily injury during the alleged commission of a crime.
Substantial risk does not apply to the entire definition but is limited only to death. A substantial risk of permanent disfigurement or protracted loss or impairment of any part or organ of the body does not qualify as serious bodily injury.5
“Protracted Loss or Impairment of the Function of any Part or Organ of the Body”
Whether or not an injury at the time of its occurrence indeed involved “substantial risk of protracted loss or impairment of the function of any part or organ of the body” is a question for the jury to decide.6 This phrase was applied in a 1983 case where the “victim” suffered a gunshot wound to a finger. It was determined that the finger may need to be amputated over time. A Colorado appellate court found that this was an example of “protracted loss or impairment of the function of any part or organ of the body.”7
“Breaks, Fractures, a Penetrating Knife or Penetrating Gunshot Wound, or Burns of the Second or Third Degree”
“Fractures” refer to its common or ordinary meaning, such as, the breaking of hard tissue like:
- tooth, or
Fractures can include anything as serious as a broken rib or less serious as a broken nose (cartilage).8
Given the above definition confirming that a break or fracture includes any kind of break or fracture regardless of how unsubstantial it may be, it should be noted that “second or third-degree” does not refer to breaks or fractures in any way, but refers only to burns.9 So a burn less than a second- or third-degree does not qualify as serious bodily injury.
What impact can this difference make in a criminal case?
Bodily injury does not have much of an impact in a criminal case, not as serious bodily injury does. If a serious bodily injury is determined to have occurred, then the degree of the offense can increase. This means if a defendant is convicted of that higher degree charge, he/she can expect harsher sentencing.
The difference in degree between bodily injury and serious bodily injury, therefore, can make the difference in the classification of the offense you are charged with and possibly convicted of. Thus, the impact of serious bodily injury can make all the difference in what happens to you. And this difference matters specifically in assault cases.
2. How does serious bodily injury enhance an assault charge?
Serious bodily injury can enhance a criminal charge of assault, including
When assault involves the serious bodily injury of a victim, the assault offense is charged as a felony that can carry with it mandatory prison time.
- If you are charged with assault without causing serious bodily injury, then it is assault in the third degree, a misdemeanor in Colorado.10
- If you are charged with assault causing serious bodily injury, then it is assault in the second degree, a felony that carries mandatory, enhanced sentencing.11
- If you are charged with assault causing serious bodily injury by means of a deadly weapon, then it is assault in the first degree, a felony that carries mandatory, enhanced sentencing.12
Serious bodily injury tacks on more prison time and higher fines. It is also important to remember that serious bodily injury enhancement can materialize either:
- immediately at the time of the assault, or
- at a later time but still as a result of the assault.
Thus, if the alleged assault originally resulted in something that appeared as a bodily injury but later materializes as a serious bodily injury, then you may be shocked to learn the assault in the third degree is increased to second-degree assault.
On the other side of it, if the alleged victim heals and has a good recovery, the charge of a second or first-degree assault will not be reduced to a third-degree assault. The recovery is not relevant in terms of whether the injury was serious enough to constitute a higher degree of assault.13
3. How does the prosecutor use this sentencing enhancement?
The term “serious bodily injury” allows a lot of room for a lot of different kinds of injuries, even those injuries that were purely accidental and unintentional. Prosecutors know this. They use the term to scare you, to force you into a plea deal.
The term, as broad as it is, makes increasing the offense from something that should be assault in the third degree to something that is not but can technically be argued as assault in the second degree. The latter offense — as mentioned — means prison time.
As such, prosecutors use serious bodily injury as a way to negotiate and influence you to plead down to assault in the third degree. It is a tool for the State to get a conviction.
But your tool against the State is an experienced, resourceful, and aggressive criminal defense lawyer.
4. Are there defenses to serious bodily injury?
You have defenses. Whether it is your innocence or mitigating factors, there are defenses. These could include:
- Mistaken identity,
- Defense of others, or
But when the crime involves serious bodily injury, you will also want to prove the “serious” component is absent from the bodily injury. At Colorado Legal Defense Group, we have resources and use medical expert witnesses who review medical records and determine if you did indeed cause serious bodily injury or not. In some cases, the injury may have already existed. In other cases, the injury could have been caused by something else and not you. A medical expert’s opinion can greatly benefit your case and is highly influential in front of a jury.
For more information, refer to the following:
- 8 CCR 1507-33 – The Code of Colorado Regulations adopts CRS 42-4-1601(4)(b) for its definition of substantial bodily injury.
- SB23-034 – 2023 law that broadened “substantial bodily injury” to include penetrating gunshot wounds and penetrating knife wounds.
- Pregnancy as a Result of Unlawful but Non-Forcible Sexual Conduct Is Not a Form of Great Bodily Injury – New England Law Review.
- Harsh and Unique: Exploring the Legality of the Resulting in “Death or Serious Bodily Injury” Enhancement of 21 USC Sec. 841 – Criminal Law Practice.
- Excessive Force Claims: Is Significant Bodily Injury the Sine Qua Non to Proving a Fourth Amendment Violation – Fordham Law Review.
- 18.1.901 subsection (2)(c), C.R.S.
- § 18.1.901(2)(p), C.R.S. SB 23-034.
- People v. Benjamin, (1979) 197 Colo. 188, 591 P.2d 89.
- People v. Summitt, (Colo. App. 2004) 104 P.3d 232, aff’d in part and rev’d in part on other grounds, 132 P.3d 320 (Colo. 2006).
- People v. Sheldon, (1979) 198 Colo. 519, 602 P.2d 869.
- People v. Thompson, (Colo. 1988) 748 P.2d 793.
- People v. Brown, (Colo. App. 1983) 677 P.2d 406.
- People v. Jaramillo, (Colo. App. 2008) 183 P.3d 665.
- People v. Daniels, (Colo. App. 2009) 240 P.3d 409.
- § 18.3.204, C.R.S.
- § 18.3.203, C.R.S. Second degree assault also encompasses intentionally hurting someone to prevent a police officer, peace officer, law enforcement officer, firefighter, or EMT from working.
- § 18.3.202, C.R.S.
- People v. Rodriguez, (Colo. App. 1994) 888 P.2d 278.