A Crime of Violence is a felony and has as one of its essential elements the use, attempted use, or threatened use of physical force against the person or property of another, or an offense that by its very nature involves a substantial risk that such physical force may be used in the course of committing the offense.
Bodily Injury can be a cut, abrasion, bruise, burn, or disfigurement; physical pain; illness; impairment of the function of a bodily member, organ, or mental faculty; or any other injury to the body, no matter how temporary.
Extraordinary Risk Crimes increases the maximum sentence the judge may give you. Extraordinary Risk Crimes include, but are not limited to, Child Abuse, Third Degree Assault, Unlawful Sexual Contact, and Violation of Restraining Order (only for second or subsequent offenses).
First degree assault is the most serious form of assault, and is generally committed by a physical assault on another person in which the defendant caused or intended to cause serious bodily injury, or used a deadly weapon.
Second degree assault is an assault that generally causes or intends to cause bodily injury to a person. It is a less serious offense if it is committed upon a sudden heat of passion, and a more serious offense if it is committed during the commission of, or flight from, certain serious felony offenses.
Third degree assault is a class 1 misdemeanor, and is committed when a person either knowingly or recklessly causes bodily injury to another or negligently causes bodily injury to another with a deadly weapon.
In Colorado, Assault may be charged as First Degree Assault, Second Degree Assault or Third Degree Assault. First Degree is the most serious, and Third Degree is the least serious (and most common).
Third Degree Assault
Colorado defines Third Degree Assault as "knowingly," or "recklessly," causing bodily injury to another person. Pain alone satisfies the "injury" requirement, even where there is no actual injury. (Or, Third Degree Assault is defined as negligently, or accidentally, causing actual injury to someone with a deadly weapon.)
Third Degree Assault is a Class 1 Misdemeanor. However, because it is an "extraordinary risk crime," the normal penalty for a Class 1 Misdemeanor is increased by six months, making the possible penalty a two year sentence to county jail. Obvious factors that will determine the sentence you receive include whether it is a first offense generally, whether it is a first offense of a similar nature, how aggravated (bad) the act was, and whether there were surrounding circumstances that mitigate (or justify) your actions. If the assault is categorized as a domestic violence offense, then mandatory domestic violence classes will be ordered by the court as a condition of your probation. A common defense to the charge of assault is Self Defense. Your attorney will evaluate your case to determine if there are facts to support a Self Defense case.
Second Degree Assault
In Colorado, you may be charged with Second Degree Assault if you:
- "Intentionally" cause bodily injury to another by means of a deadly weapon.*C.O.V.
- "Recklessly" cause serious bodily injury to another by means of a deadly weapon.*C.O.V.
- With intent so cause bodily injury, you cause serious bodily injury.*C.O.V.
- Cause bodily injury to anyone while intentionally trying to prevent a police officer or firefighter from doing their duties.*C.O.V.
- "Knowingly" apply "physical, violent force" to a police officer, firefighter, prison guard, or a judge while they are in the performance of their duties.
- Intentionally drug someone without their consent.
*C.O.V. means that this will be considered a "Crime of Violence" and will involve a mandatory sentence to prison if convicted. The judge has no choice but to sentence the defendant to at least the midpoint of the presumptive sentence range, which for Second Degree Assault would be a minimum sentence of five years.
Notice that the difference between bodily injury, and "serious" bodily injury becomes important when determining whether the facts of your case justify a criminal charge for Second Degree Assault. As noted above, "bodily injury" means any pain, even if temporary, or any physical or mental impairment (for example, a small scratch is physical impairment). "Serious bodily injury" is "bodily injury which, either at the time of the actual injury or at a later time, involves a substantial risk of death, a substantial risk of serious permanent disfigurement, a substantial risk of protracted loss or impairment of the function of any part or organ of the body, or breaks, fractures, or burns of the second or third degree." CRS 18-1-9001
If there was "Heat of Passion," in other words, you were provoked by the person into committing the assault, then the District Attorney may choose to file the Second Degree Assault as a Class Six Felony, instead of a class four, thereby reducing the possible penalties. Heat of passion is different from Self Defense. Heat of Passion "mitigates" your actions – or makes them seem less severe to the judge at sentencing - whereas Self Defense is a complete defense to your guilt or innocence itself.
First Degree Assault
In Colorado, you may be charged with First Degree Assault if you:
- Intend to cause serious bodily injury to another person, and do actually cause serious bodily injury to anyone (even if not the intended person).
- Intentionally seriously disfigure or disable another person.
- With "Extreme Indifference to the value of human life," you knowingly do something which creates a grave risk of death, and in doing so, cause serious bodily injury to another.
- With intent to cause serious bodily injury to police, a firefighter, a judge, or a prison worker; you threaten them with a deadly weapon.
Here again, if there is "Heat of Passion," in other words, you were provoked by the other person, then the District Attorney may file the charge as a Class Five Felony, a reduction from the normal Class Three Felony designation – reducing the possible sentence.
If there were no circumstances involving Heat of Passion, then First Degree Assault is always a "Crime of Violence," and will result in a mandatory prison sentence of at least ten years if convicted. As always, Self Defense is a complete defense to the charge itself.