The law in Colorado has been that every attempt to do personal injury involves an assault since at least the late 1800s. However, not all assaults are criminal, as some are excused by self defense, and some require intent or some level of negligence or recklessness to be criminal. Assault charges range in seriousness from municipal court violations to felony charges including vehicular and sexual assault. Attorney Vernon Ready has successfully defended against a range of assault charges.
Third Degree Assault:
Third degree assault is typically charged as a first degree misdemeanor, and is categorized as an extraordinary risk crime for sentencing purposes. Assault in the third degree occurs when a person causes bodily injury to another person. The statute requires that the bodily injury be inflicted knowingly or recklessly. If a deadly weapon is involved, third degree assault can be proven if the action resulting in bodily harm was criminally negligent, rather than the reckless or knowing action required for an assault without a deadly weapon.
Although perhaps a strange alternative, it is also possible to be charged with third degree assault for causing a first responder, such as police, firefighters, or emergency medical services, to come into contact with bodily fluids. Accordingly, urinating on a police officer for the purpose of annoying that police officer, might be appropriately charged as a third degree assault.
Third degree assault is commonly charged within the context of domestic violence. If an argument between a couple becomes physical, but serious bodily harm does not occur, one or both parties might expect to be charged with third degree assault.
Second Degree Assault:
Intentionally causing bodily harm to another with a deadly weapon is classified as second degree assault. Intending to cause bodily harm without a deadly weapon, and actually causing serous bodily harm, will likely be charged as second degree assault.
Drugging a person without consent may be charged as second degree assault, as may use of force against first responders or guards while in jail or prison.
Second degree assault is typically charged as a class 4 felony. However, it may be a class 6 felony if the assault occurred due to a sudden heart of passion. It may also be charged as a more serious felony if the assault allegedly occurred in conjunction with certain other crimes.
Regardless of which felony class applies, the accused should speak with a knowledgeable attorney to determine which sentencing enhancers will apply and how those will change the sentencing range for their specific case. Crime of violence sentencing and extraordinary risk crime provisions will likely apply. In the case of sexual assault cases, sentencing variations and additional obligations are so significant that the felony sentencing guidelines may not be a useful guide at all.
First Degree Assault:
First degree assault applies to cases in which a person intends to inflict serious bodily injury to another person, and then uses a deadly weapon to do so. Assault will also be charged in the first degree if the accused is believed to have intentionally caused permanent injury or disfigurement. If an accused causes serious bodily injury by knowingly taking some action that demonstrates an extreme indifference to human life, the charges will likely include first degree assault.
Intentionally causing serious bodily injury to a first responder, including a police officer, can also be charged as first degree assault. Threatening others with a deadly weapon can in some cases be charged as first degree assault, including threats made with a deadly weapon to a judge or officer of the court. Finally, first degree assault can also occur where an accused in custody intentionally causes serious bodily injury to an employee or contractor of the facility, such as a jail guard or prison doctor.
Like second degree assault, assault in the first degree is charged differently if the alleged assault occurred in the heat of passion. Heat of passion assault would likely be charged as a class five felony, instead of the Moore standard class 3 felony applicable to most first degree assault charges. As with any assault, first degree assault cases are subject to modified sentencing ranges for extraordinary risk crimes, crimes of violence, etc. Sexual assaults may be subject to entirely different sentencing structures, including indeterminate sentencing and registration obligations. Regardless of the type of assault charged, it is advisable to discuss each specific case and charge with an attorney. It is important to know the true sentencing range for a specific charge to properly weigh the risks and benefits of going to trial in your case.
Choking or suffocation with intent to cause bodily injury, that does result in bodily injury, constitutes second degree assault. The same act resulting in serious bodily injury, with the coinciding intent, constitutes first degree assault.
Assault on Police:
The Colorado statutes defining all three degrees of assault establish special protections for police officers that do not apply to the public generally. These protections have been found to apply even where a police officer is off duty, if the police officer was attempting to enforce the law.
Serious bodily harm:
The difference between bodily harm and serious bodily harm can often make the difference between facing a felony charge and possible prison time, and a misdemeanor charge that is more likely to involve probation and a relatively short jail term. The Colorado courts have defined serious bodily harm as involving a substantial risk of death, permanent disfigurement, or a long loss of the use of a body part or organ.
Intent tends to be important in assault cases at all levels. The elements of charges that do require intent tend to be specific about that intent. Assault can be charged differently based upon an intent to cause bodily harm, versus an intent to cause serious bodily harm. Even charges involving deadly weapons can depend on the intent of the accused, and intent is not necessarily proven just by the fact that an assault occurred. Colorado courts have taken up a very wide range of challenges to the intent element of assault charges, including whether intent to harm one person can meet the intent requirement where another person is actually the one injured.
Because intent can be so important to the defense, it is almost always a good idea to discuss your case in full with an attorney before attempting to negotiate with, or even discuss the case with, law enforcement. An intent defense could easily be lost by careless communications on the record with police. They know what the elements are and what they need to prove. A simple admission may seem harmless now, but such conversations can do irreparable harm to even the most valid defenses.
Lesser Included Offenses:
A lesser included offense is a lower level offense included entirely within a higher level charge. That means if a prosecutor charges the accused with second degree assault, but fails to prove all the elements of that charge, a jury might still convict of third degree assault, without the prosecutor even having to charge the lesser crime. These lesser included crimes can be traps for someone who is unaware of them. They mean an accused must simply know that admissions to some charged conduct, but not all charged conduct, could still result in a conviction. To obtain information about whether any lesser included offenses are included within your charges, call our office and schedule an appointment to speak with an attorney.
If you are charged with assault, even if you are sure yours is a case of simple misidentification, call our office today to meet with an attorney. Discuss all the aspects of your charges that the prosecution is required to prove. Understanding all aspects of a charge will help you present your best defense.