Colorado has changed the 2nd Degree Assault Law §18-3-203. It has now may become the most charged domestic violence crime in Colorado this year. Strangulation is the buzzword you hear. What used to be a misdemeanor now is a felony in Colorado. I am not saying that law enforcement recklessly charges felony strangulation. I am saying that law enforcement is now trained to specifically look for it and ask for it every time they respond to a 911 call. If you go looking for something, you can usually find what you are looking for.
Strangulation v. Choking
Strangulation does not mean what you think it means. That is part of the confusion.
Strangulation requires pressure applied from the outside, cutting off airflow blooding vessels in the neck. Strangulation prevents oxygen from reaching the brain.
Choking refers to a blockage inside the throat that makes it hard to breathe.
3-2:16.7 ASSAULT IN THE SECOND DEGREE (RESTRICT BREATHING)
[ACTUAL JURY INSTRUCTION]
The elements of the crime of assault in the second degree (restrict breathing) are:
- That the defendant,
- in the State of Colorado, at or about the date and place charged,
- with the intent,
- to cause bodily injury,
- applied sufficient pressure to impede or restrict the breathing
or circulation of the blood of another person, - by applying such pressure to the neck or by blocking the nose
or mouth of the other person, and - thereby caused bodily injury.
- and that the defendant’s conduct was not legally authorized by
the affirmative defense[s] in Instruction[s] .
After considering all the evidence, if you decide the prosecution has
proven each of the elements beyond a reasonable doubt, you should find
the defendant guilty of assault in the second degree (restrict breathing).
After considering all the evidence, if you decide the prosecution has
failed to prove any one or more of the elements beyond a reasonable doubt,
you should find the defendant not guilty of assault in the second degree
(restrict breathing).
F:36 BODILY INJURY (GENERAL DEFINITION)
“Bodily injury” means physical pain, illness, or any impairment of
physical or mental condition.
F:185 INTENTIONALLY (AND WITH INTENT)
A person acts “intentionally” or “with intent” when his [her] conscious objective is to cause the specific result proscribed by the statute
defining the offense. It is immaterial to the issue of specific intent whether
or not the result occurred.
As an Act of Domestic Violence
99% of the time, this is also charged with the sentencing enhancer of domestic violence. Domestic Violence is not a crime. Domestic violence is a sentencing enhancer.
Domestic Violence is a Sentencing Enhancer
A sentencing enhancer is not a crime. A sentencing enhancer is literally that, it only enhances the sentence of a crime you have already been found guilty of. To explain:
- if you hit me, you will likely be charged with an assault. If you are found guilty of the assault or take a plea to an assault, you will have to pay fines and costs, complete probation, and possibly go to jail.
- If you hit me and we have previously had sex, you will likely be charged with an assault and also charged with the sentencing enhancer of domestic violence. If you are found not guilty of the assault, you cannot be found guilty of the sentencing enhancer of domestic violence. If you are found guilty of the assault or take a plea to an assault, you will have to pay fines and costs, complete probation and possibly go to jail and you will be required to get a domestic violence evaluation and do whatever counseling they recommend (that is a lengthy separate blog).
Sentencing Structure
When the legislature came out with this new Statute it took an old friend of mine about a minute to try and find a way to make this a more aggravated crime than it was. The Court of Appeals ruled that it was NOT a crime of violence with a mandatory prison sentence but instead it is an Extraordinary Risk Crime carrying a possible sentence in the Department of Corrections for 2-8 years. It is still probation eligible and does not require a mandatory sentence to The Colorado Department of Corrections.
Please do yourself a favor and call an attorney so they can explain how the Lee and Slaughter cases [People v. Lee, 477 P.3d 732, (Colo. App. 2019) (“People v. Slaughter, 2019 COA 27, 439 P.3d 80”)] case applies to your benefit in a strangulation case.
Please call Greg Huckaby or M. Colin Bresee at your convenience at the office number of (303) 377-0100 just to better understand the nuances of this unique law and how best to handle a strangulation case in Colorado.
We can discuss occlusion and petechia and how they apply to your unique case when you are ready for a more technical conversation.
