Third Degree Assault to Felony First Degree Assault and Domestic Violence: #2 for Arrests in Colorado

Understanding the varying degrees of Colorado’s assault laws doesn’t have to be an overwhelming challenge. If you or someone who know has been charged with assault, the Law offices of Colin Bresee can help! We believe it’s important for you to know as much as you can about assault charges, the elements involved, and the different degrees of assault. We’ll tackle the varying definitions of first degree assault, second degree assault, and third degree assault. We are here to help you understand the penalties involved and any other information that would help protect you or someone you love in the event of an assault charge.

The Three Degrees of Assault

We often hear “assault and battery” in the same phrase, but it’s important to know that they differ and are almost NEVER present together at the same time in Colorado Law. While often used in conjunction, they are distinct terms for distinct situations and should be treated as such.

In Colorado, the technical definition of “assault” is “to either intentionally, or through reckless behavior, inflict bodily harm or injury on someone, whether through violent physical contact or with a weapon.”

“Battery,” (sometimes referred to as “menacing” under Colorado law), is defined as “inflicting or causing fear of immediate bodily injury through threats, whether verbal or physical.”

In a nutshell, the term “assault” refers to the actual infliction of injury, as opposed to threats or menacing actions, which would be classified as “battery.”

Assault charges can be defined in three degrees. Each one carries a unique penalty according to the level of injury to persons. The law is not concerned with whether or not the actions were intentional or simply from reckless behavior – the punishment for the level of injury remains the same unless the case is found to fall under the “Self Defense” category.

Whether the assault is first-, second-, or third-degree will also depend on whether the harm inflicted was determined as “serious bodily injury” or “bodily injury”. The difference between the two can mean a completely different sentence length if convicted, and a different criminal record. Serious bodily injury is required for a first-degree assault charge and is defined as an injury that results in serious risk of death, disfigurement, protracted loss, or impairment of any function of the body, whether organs or other parts. This includes broken bones, second and third-degree burns, and fractures.

Bodily injury also pertains to second and third-degree assault charges, and generally means physical pain, illness, or any impairment to physical or mental function. This can literally mean, “you pinched me and it caused me pain.” It can be very minor and doesn’t even require medical attention.

Let’s take a look at the three degrees of assault in Colorado, and how each one is defined.

First Degree Assault In The State of Colorado:

First-degree assault is considered to be the most serious in the state of Colorado and is a felony. This type of charge is leveled against someone if they knowingly caused another person serious injury, disfigurement, or disability. This term also applies even if the serious harm was inflicted unintentionally – behavior that displays a complete lack of respect, consideration, or regard for another human life and results in serious bodily harm can also be placed under the first-degree assault category. Known as aggravated assault, first-degree assault charges can also be brought against someone if they knowingly used a weapon to harm or threaten a police officer, firefighter, paramedic, prison employee, or other protected personnel in the performance of their duties.

First Degree Assault Technical Definition

You can be charged with First-Degree Assault in the State of Colorado if you:

1. Intend to cause serious bodily injury to another person, and do actually cause serious bodily injury to anyone (even if not the intended person).
2. Intentionally seriously disfigure or disable another person.
3. Acting with “Extreme Indifference to the value of human life,” you knowingly do something which creates a grave risk of death, and in doing so, causes serious bodily injury to another.
4. With intent to cause serious bodily injury to police, a firefighter, a judge, or a prison worker; you threaten them with a deadly weapon.

First Degree Assault Penalties:

First-Degree Assault is considered a Crime of Violence, classified as a Class Three Felony, and can be punishable by a minimum of six years in prison. If you were provoked or engaged by the person into committing the assault, the term “Heat of Passion” will be used to mitigate your actions. This would lead the attorney to file the assault charges as Second-Degree Assault instead of Third, and lessen the penalties, usually decreasing the sentence to a minimum of two years.

If the case can be filed under Self Defense, which would defend your innocence in light of the fact that in order to protect yourself from harm, you had to carry out an assault or inflict injury on another person.

Second Degree Assault in The State of Colorado:

What differentiates Second-Degree Assault from First is the level of bodily injury – serious/potentially deadly harm inflicted on someone else classifies as First, and Second-Degree Assault, while still involving bodily harm, pertains to less than deadly injuries. The definition of bodily harm/injury includes physical pain, illness, cuts, abrasions, burns, bruises, or disfigurements, impairment of a bodily function, organ, or mental function, no matter how temporary. Second-Degree Assault is still prosecuted as knowingly or recklessly causing someone else bodily harm, and also includes causing harm to a protected employee in the performance of their duties.

In addition to the above, a Second-Degree Assault charge also applies if you administered drugs to someone without their consent in an attempt to cause impairment of any bodily function.

In the State of Colorado, you can and will be charged with Second-Degree Assault if you:

1. “Intentionally” cause bodily injury to another by means of a deadly weapon.
2. “Recklessly” causes serious bodily injury to another by means of a deadly weapon.
3. With the intent to cause bodily injury, you cause serious bodily injury.
4. Cause bodily injury to anyone while intentionally trying to prevent a police officer or firefighter from doing their duties.
5. “Knowingly” apply “physical, violent force” to a police officer, firefighter, prison guard, or a judge while they are in the performance of their duties.
6. Intentionally drug someone without their consent.

Actions 1-4 are considered Crimes of Violence and means that there will be a mandatory prison sentence involved if the assailant is convicted.

Second Degree Assault Penalties:

Under Colorado State Law, Second-Degree Assault is a Crime of Violence and a class four felony. Penalties include a mandatory minimum of four years in prison. If the crime is deemed a result of Heat of Passion, much like First-Degree Assault, the sentence can be reduced to a minimum of 15 months.

Second Degree Assault Strangulation:

With a recent change in the law MANY misdemeanor crimes are NOT being charged as felony crimes. The reason is the new Strangulation Law in Colordao.

What to Do if You’ve Been Arrested of in a Strangulation Domestic Assault Case

If you are charged with a felony, there are several consequences that can be devastating. A felony conviction could cost you your job or your ability to find future jobs as well as housing.  You could lose your right to possess firearms and lose the right to vote. If you are in the military, this could jeopardize your career.

When a charge of domestic violence is applied to a crime, the Victim’s Bill of Rights is now used as a sword to attack a defendant and not as a shield to protect a victim. In addition the law requires a Mandatory ARREST. This was previously covered in a blog that if law enforcement has “probable cause” to believe that you committed an act of domestic violence, you must be arrested “without undue delay” under Colorado law. If the police do not believe they can prove the case beyond a reasonable doubt, you will be arrested. If you acted in self-defense and the police know it, you will be arrested. If the person who called does not want the police called, you will be arrested. If you called the police and the other person alleged that you strangled them…yes call me when you get out of JAIL.

Victim’s Bill of Rights

Under the Victim Bill of Rights the Court may IMMEDIATELY:

Take away your second Amendment Rights (innocent until proven guilty not feeling like that is it?);

Issue a Mandatory Restraining order;

prohibit you from returning or living in your own house

prohibit you from seeing your significant other or wife

prohibit you from talking to your significant other or wife

Prohibition against having the charges dropped: In most criminal cases, the prosecutor can dismiss your case if they cannot ethically prove the case beyond a reasonable doubt. In a domestic violence case, the prosecutor WILL proceed with the case against you even if they do not think they can prove the case beyond a reasonable doubt. You need a skilled lawyer to advocate for you to get your case dismissed if possible.

Third Degree Assault in The State of Colorado:

In the State of Colorado, Third Degree Assault is defined as causing bodily injury, whether recklessly or knowingly, with a deadly weapon. Intentionally harassing, threatening, or injuring a police officer, firefighter, or other protected employee with a dangerous weapon or substance is also punishable under Third Degree Assault.

Third Degree Assault Penalties:

According to the State of Colorado, Third Degree Assault is considered a class 1 misdemeanor. Depending on the nature of the crime however, the incident could be termed high risk, and the Third Degree Assault sentence could include two years in County Jail. This depends on the discretion of the judge, possibly the Jury in a Third Degree Assault Trial, and a few other considerations – whether it was a first offense or a second of a similar nature to the first, and whether or not the circumstances surrounding the violent actions mitigated or justified it. If the Third Degree Assault charges fall under domestic violence, the penalty will most likely include mandatory domestic violence classes. It’s important to note that domestic violence is itself not a criminal charge, but rather a sentence enhancement to an already underlying charge.

The Difference Between an Assault and a Felony When It Comes to Assault in Colorado

There are four factors that judges will consider if you’re facing an assault or felony conviction in Colorado. Did you use a deadly weapon? What was your state of mind? What was the extent of the victim’s injuries? And was the victim a public official?

1. Use of a Deadly Weapon

For purposes of Colorado 18-12-105.5 C.R.S., a “deadly weapon” is defined as:

• A firearm, whether loaded or unloaded; or
• A knife, bludgeon, or any other weapon, device, instrument, material, or substance, whether animate or inanimate, that, in the manner, it is used or intended to be used, is capable of producing death or serious bodily injury.

Many things can be considered a deadly weapon. Firearms and knives are obvious, but there are plenty of household and non-household items that would fall into this category, as well, depending on the situations surrounding the case.

2. Defendant’s State of Mind

The most blameworthy state of mind is that in which the defendant clearly had intent to cause harm. Reckless behavior is a bit lower on the penalty scale, and criminal negligence is the least serious state of mind.

3. Physical Injuries

Bodily injury refers to physical pain, illness, and/or any impairment of physical or mental condition – the standard in a Third Degree Assault. Serious bodily injury, on the other hand moves it typically to a felony which could involve fractures, second- or third-degree burns, a substantial risk or death or permanent disfigurement, or a substantial risk of organ function impairment.

4. Status of the Victim

If the victim was an on-duty official—such as a peace officer, firefighter, EMT, judge, or jail staff member—you may face harsher penalties than if the victim didn’t fall into any of these five categories. An assault might otherwise be considered a misdemeanor, given the victim wasn’t an on-duty official. If the person was a peace officer or firefighter, for example, that could change the charges from a misdemeanor to a felony.

Summary of Assault Laws in Colorado

When it comes to understanding Colorado’s assault (and battery) laws, you need concise and educated answers from people who know the statutes and how to best help you or your loved one in a sticky situation. Colin Bresee is a leading assault attorney in the State of Colorado, and provides better awareness of the charges being brought, offers support and better understanding in the event that the court imposes “reasonable terms”, and works with you to create the best plan for dealing with an assault charge. Never hesitate to contact our offices with any questions or concerns. If you or a loved one has had a 1st, 2nd, or or Third Degree Assault charge brought against them, it’s important that you know you have the best assault attorney by your side.