Accident as a Legal Defense in Colorado Criminal Cases

Showing that a crime was an accident can be an effective legal defense in Colorado. Most criminal laws require the prosecutor to prove that you had a culpable state of mind at the time of the crime. At the very least, this requires showing that you acted with criminal negligence. Showing that the incident was just an accident prevents the prosecutor from proving this element of the crime.


  • Jim is charged with assault for punching Janet in the face. Jim claims it was an accident because he only punched Janet when he lost his balance.
  • Pauline pushes open a door without knowing Frank is on the other side.

Defending against a criminal charge by saying it was an accident can be risky. In this article, a Colorado criminal defense attorney explains why:

defendant before judge in court

1. How the accident defense works in Colorado

Evidence that your conduct was lawful and accidental can defend against a criminal accusation. It shows that you did not have a culpable state of mind.

Most crimes in Colorado have two elements:

  • A wrongful act, and
  • A culpable state of mind.

The prosecutor has to prove both of these elements beyond a reasonable doubt. If the prosecutor cannot do this, you will not be convicted.

Different crimes in Colorado require different states of mind for a conviction. Some crimes require intentional conduct. Others only require conduct that is criminally negligent.

Evidence that the wrongful act was only done accidentally prevents a prosecutor from proving you had a culpable state of mind.

Example: Jim is charged with CRS 18-3-203 second-degree assault for punching Janet in the face. This crime requires intentional conduct. Jim argues that he lost his balance and only hit Janet accidentally. This defense can keep the prosecutor from proving that he acted intentionally.

1.1. The accident has to be lawful

In order to succeed as a legal defense, the accident has to be a lawful one.

If you make a mistake while in the middle of unlawful activity, it undermines an accident defense.

Example: Michelle is driving drunk. She sees a red light, but her toe gets stuck on the accelerator. She causes a crash in the intersection after running the red light. She cannot use the accident defense because she was driving while drunk.

attorneys before judge

1.2. The accident defense against crimes that only require criminal negligence

The accident defense is most difficult, but also the most common, against criminal charges that only require criminal negligence.

Criminal negligence is a failure to perceive a substantial risk that certain conduct will lead to a particular result. That failure to perceive the risk is such an oversight that it amounts to a “gross deviation” from what is reasonable.1

An accident, on the other hand, is not so culpable. Even if it is the result of negligence, an accident is not the result of such unreasonably bad conduct that it could be considered a crime.

For example:

  • Tim gets drunk and drives his car home. He causes a crash. His decision to drink and drive was criminally negligent.
  • Betty takes her eyes of the road for a split-second to change the radio. She causes a crash. Her distraction was merely negligent.

2. Why is the accident defense risky?

The accident defense is risky because it admits that the wrongful act happened. Admitting that the illegal conduct happened can undermine a lot of other legal defenses. It forces the defendant to prove the accident defense, at the expense of raising other arguments. This can be risky if other legal defenses are more likely to succeed.

Example: John is accused of assaulting his wife. Because they are in the middle of a divorce, he could claim she is making up the accusation. If he claims it was an accident, though, he admits that she got hurt.

3. When the accident defense is not an option

The accident defense is only an option when the criminal charge requires a culpable state of mind. Some crimes, however, are strict liability offenses. These only require proof that you did the illegal act. Because a culpable state of mind is not necessary for a conviction, the accident defense is not an option.

Example: Harriet gets charged with DUI in Colorado. All the prosecutor has to show is that she was over the legal limit. She cannot raise an accident defense.

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Legal References:

  1. C.R.S. § 18-1-501(3).

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