Welcome back to Krizman Law, where you can expect a relentless criminal defense. Today, we’re talking about assault. Now, there are several types of assault charges, both at the state level here in Colorado and at the municipal level here in Colorado. So we’re going to break everything down and talk to you about what it means to be charged with assault.
Three Types of State-Level Assault Charges
Now on the state level, there are three different types of assault: first, second, and third-degree. These are defined in Colorado Revised Statutes, 18-3-202, 18-3-203, and 18-3-204. Now examples of actions that can be considered assault are throwing objects or harmful substances at a person; pushing, shoving, or kicking; punching, hitting, or slapping; and shooting, stabbing, or strangling; obviously all with increasing levels of violence. If an individual dies from an assault, then the person who caused that death does face homicide charges. In order to be charged with assault, an actual harmful act must occur. The threat of a harmful act without follow-through is menacing or attempted assault. It is not simply assault.
Misdemeanor Assault (AKA third-Degree Assault)
Let’s start with misdemeanor assault. Here in Colorado, that’s known as third-degree assault. That occurs when someone with the intent to cause bodily injury does cause that bodily injury. Or, when someone, through the use of a deadly weapon, but without intent to cause injury, does, in fact, cause the injury. Or when an individual has the intent to harass, threaten, annoy, or alarm a peace officer or firefighter, or emergency personnel. That person may come into contact with hazardous material or bodily fluids.
Now, third-degree assault is the least serious degree of assault. However, it is a class one misdemeanor here in the State of Colorado. So that means depending upon the circumstances, an individual who commits third-degree assault could be facing up to 24 months in jail.
Felony Assault (Two Types)
There are two types of felony assault: first-degree assault and second-degree assault. Let’s talk about first-degree assault.
First-degree assault is the most serious statute at the state level here in Colorado. It involves serious violence as well as serious damage to the individual that this occurred upon. So let’s talk about what that might be. With the intent to cause serious bodily injury, someone does so by means of a deadly weapon. Or, with the intent to disfigure another person, disfigures that person. Or shows utter disregard for human life and knowingly engages in conduct that puts life at risk and causes serious bodily injury to another person.
Other examples are when someone with the intent to cause serious bodily injury to a peace officer does so. Or, with the intent to cause serious bodily injury to a member of the court, does so.
Serious bodily injury is when someone suffers a broken bone, potential death, or serious or permanent disfigurement. Those three factors are what courts determine, and juries determine causes serious bodily injury. Another way that a person can commit first-degree assault is if they tried to commit it under the sudden heat of passion.
Now first-degree assault is generally considered a class three felony: if it is committed while in the heat of passion, which is an imperfect defense, that charge could potentially be dropped down to a class five felony.
Now, class three felony generally carries with it a potential penalty of up to 24 years in prison and a maximum of a $750,000 fine. Needless to say, if you’re facing first-degree assault charges, it is imperative that you have an attorney on your case, protecting your rights.
One of the more complex statutes in Colorado is the second-degree assault statute. This, too, is a felony version of assault, but there are different subsections, and depending upon the conduct alleged, second-degree assault can have a mandatory prison sentence, or it could have non-mandatory prison sentences.
It could be considered a crime of violence and thus require the crime of violence sentencing, or it could be considered not a crime of violence. Trying to navigate the second-degree assault statute is like getting lost in a corn maze. That’s why we here at Krizman Law broke it all down, and you can find this blog on my website, delineating each aspect of the second-degree assault statute.
But today, I’m going to explain the statute to you and divide these charges into their proper categories.
Categories of Second-Degree Assault
A: Non-Mandatory Sentencing Non-Crimes of Violence
Let’s start with the conduct under the second-degree assault statute: a non-mandatory sentence and is also not a crime of violence. There are four portions of the second-degree assault statute that fall under this umbrella. Those are:
- With the intent to cause bodily injury by applying pressure to impede or restrict breathing or circulation, essentially choking.
- With the intent to infect, injure, or harm a first responder by causing them to come into contact with bodily fluids or harmful or toxic substances. This is the classic spitting on a cop charge.
- The third possible conduct is causing physical impairment through the administration of drugs. Interestingly, this doesn’t happen that often, but until there were second-degree assault statute revisions here in Colorado, a lot of times, that was what was pled to in order to avoid mandatory sentencing.
- And the fourth one is an inmate incarcerated in a state or federal prison who applies force to peace officers of that detention facility.
Now to break that all down, essentially choking, spitting on a first responder, creating physical impairment through drugs, or using force on a corrections officer are all non-mandatory sentencing, non-crimes of violence, versions of second-degree assault.
So what does that mean? All of these offenses can be charged as class four felonies. All second-degree assault charges are extraordinary risk crimes. However, not all are crimes of violence. The defenses that we discussed are not considered crimes of violence, and, therefore, the sentencing guideline for an extraordinary risk class four felony is two to eight years in prison and a fine of $2,000 to $500,000 with three years of mandatory parole.
B: Non-Mandatory Sentencing Crimes of Violence
Now let’s tackle the non-mandatory sentencing crimes of violence. Conduct that falls under this category of second-degree assault includes:
- Intentional bodily injury, but not serious bodily injury by means of a deadly weapon.
- Recklessly causing serious bodily injury by means of a deadly weapon.
- Intending to cause bodily injury, but instead causing serious bodily injury.
- Causing intentional bodily injury on a first responder.
All of these, because they include a deadly weapon, serious bodily injury, or bodily injury on a first responder, fall into the crimes of violence. So what does that mean? In these cases, just like the others, this is still an extraordinary risk class four felony. However, because of the above offenses are considered crimes of violence. They carry a different sentencing guideline. Instead of the minimum sentence of two years, crimes of violence carry a potential of at least the midpoint: five years, but not more than double the maximum sixteen years of the potential penalty. Again, instead of two to eight, looking at five to sixteen.
It is important to note that, although this has a potential penalty of five to sixteen years in prison, it is not a mandatory sentence. And, therefore, it is possible to receive a probationary or community correction sentence without going to prison. Not so with the next group.
C: Mandatory Sentencing Crimes of Violence
Now let’s talk about those portions of the second-degree assault statute that are both mandatory sentencing and crimes of violence. Those are: causing serious bodily injury to a non-party during the commission of a felony and causing intentional, serious bodily injury on a police officer. So what does that mean?
That means if someone is engaged in some other felony, say burglary, and that person causes serious bodily injury to someone who isn’t a defendant during the commission of that burglary, they are now in the mandatory crime of violence section of second-degree assault. Similarly, anyone who causes intentional serious bodily injury on a police officer will find them in this mandatory sentencing portion of the statute.
What does that mean? Well, as we know from the last group, because it’s a crime of violence instead of two to eight, we’re looking at five to sixteen, but in addition to the increased potential prison exposure, they do carry a mandatory sentence. Therefore, if you are convicted of a mandatory sentencing crime of violence portion of the second-degree assault statute, probation, community corrections, or any other alternative sentencing option isn’t available. If you’re convicted, the minimum you can do or be sentenced to is five years in the department of corrections.
Heat of Passion Defense
Let’s now talk about some other considerations as it relates to the second-degree assault statute. Similar to the first-degree assault statute, there is an imperfect defense to the second-degree assault statute, and that is a heat of passion.
If any of the above circumstances are committed during what’s called the heat of passion, which means after the victim provokes the offender into performing the act, which takes place immediately after the provocation. Then that class four felony can drop down to a class six felony. It is still an extraordinary risk crime, and it can still potentially be an extraordinary risk crime of violence.
However, a class six felony carries a potential penalty of one to two years in prison. And if it’s a crime of violence, you’re now looking at one and a half years up to four years.
Preliminary Hearing Eligibility
It is also important to try to understand which charges are entitled to a preliminary hearing. Now, elsewhere on this website, you can find extensive information about what charges are eligible for a preliminary hearing. Which charges are not eligible for a preliminary hearing and an overview about what a preliminary hearing is.
However, for purposes of this discussion, I’m going to stick solely to what portions of the assault statutes are worthy or able to obtain a preliminary hearing.
First-Degree Assault Preliminary Hearing
First-degree assault will always be preliminary hearing eligible because it is a class three felony and because all first-degree assault conduct is considered a crime of violence.
Therefore, even if there’s the heat of passion defense, which would drop it out of the preliminary hearing or automatic preliminary hearing classification because it’s a crime of violence, it gets looped right back in.
Second-Degree Assault Preliminary Hearing
Second-degree assault: different story. Because second-degree assault is a class four felony, most charges don’t automatically qualify for a preliminary hearing. However, if it is considered a crime of violence, again, all of those circumstances in which it is either non-mandatory, but crime of violence or mandatory and crime of violence, the person is in fact entitled to a preliminary hearing. Of course, all of this is subject to whether or not the person remains in custody, regardless of the charge, if it is a first-degree or second-degree assault allegation, so class three, four, five, or six felonies, and that person is in custody, they are absolutely entitled to a preliminary hearing.
Now with third-degree assault or misdemeanor assault, there is never going to be a preliminary hearing. Misdemeanors are not eligible for that hearing.
Municipal Court Assault Charges
Finally, let’s talk about municipal courts and their version of assault. Municipal courts operate on a different level than state courts. And there’s other content on this website that explains municipal charges in more depth, but it is important to note that in Denver and Aurora municipal courts, as well as some other municipal courts throughout the state, assault comes along, almost always with the charge of battery. Assault in a municipal court is the attempted conduct, coupled with the present ability to commit a battery. Therefore, in a way, it’s attempted battery. What does that mean? In municipal courts, an assault is a hand coming toward the face; battery is the connecting of the hand to the face. Therefore, unlike state courts where assault includes that harm, in municipal courts, it’s just the attempt.
Potential Defenses to Assault Charges
There are many potential defenses to assault, whether first, second, or third-degree, or municipal assault. The key is to understand which ones are available to you.
Self-Defense or the Defense of Others Defense
The most common defense to assault is self-defense or defense of others. In the state of Colorado, pursuant to Colorado Revised Statutes 18-1-704, a person is justified in using physical force in defense of themselves or another person if they reasonably believe that themselves or another person is in danger of imminent use of unlawful physical force against that person from another. And they reasonably believe that the force they use is necessary for the purpose of defending themselves or another from that unlawful force.
Self-defense is a perfect defense, which means that if the prosecution does not prove beyond a reasonable doubt that the defendant did not act in self-defense. That person is justified in using that force and is not guilty of the crime alleged.
General Denial or Accident Defense
Other potential defenses include general denial, meaning the conduct didn’t happen, or the person’s not telling the truth or didn’t happen the way that person is saying, or, sometimes, accident or mistake of fact are potential defenses to any of the above or previously discussed assault statutes.
Conclusion: Get An Attorney Now!
As you can see, assault in Colorado is fairly complex. Whether it be a felony, a misdemeanor, or municipal code violation, there are different intricacies to these statutes and how they can be applied to someone who’s accused of that crime. That’s why it is so important to make sure that you have a relentless criminal defense attorney on your side. If you’ve been charged with first, second, or third-degree assault, or misdemeanor assault and battery, contact us today. Krizman Law would love to help you out. Thank you.
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If you are in Colorado and have been charged with a crime, contact Krizman Law TODAY for a free, confidential, no-obligation review of your legal case.
Mr. Krizman is a criminal defense attorney in Denver, Colorado. He specializes in providing relentless defense for domestic violence, DUI, and drug crimes. He is a former public defender who has also worked for a district attorney and is licensed in the State of Colorado, and the United States Federal Court, District of Colorado. Mr. Krizman is a member of the Colorado Criminal Defense Bar, Colorado Bar Association, Denver Bar Association, and Arapahoe County Bar Association. A Colorado native, he has a law degree from the University of Denver Sturm College of Law, and a bachelor’s degree in Government and World Affairs from the University of Tampa. Contact him today at 720.819.7317.