In Colorado, simple assault is generally treated as a misdemeanor. However, assault can be prosecuted as a felony in more serious cases, such as
- when a deadly weapon is used or
- when the victim suffers a significant injury.
Types of felony assaults include:
- First-degree assault (C.R.S. 18-3-202), which is a Class 3 felony,
- Second-degree assault (C.R.S. 18-3-203), which is a Class 4 felony,
- Vehicular assault (C.R.S. 18-3-205), which is a Class 5 felony, and
- Vehicular assault while driving under the influence (C.R.S. 18-3-205(1)(b)), which is a Class 4 felony.
Examples
- Kyle is driving while drunk. He causes an accident that hurts Pamela.
- Hank gets into an argument with Mark. Hank pulls out his pistol and shoots Mark in the hand.
Legal defenses People who have been charged with felony assault often use the following legal defenses:
- You acted in the heat of passion,
- You only committed the assault for self-defense or to defend someone else, and
- You did not intend to hurt someone.
Penalties A conviction for felony assault carries serious penalties. The most severe type of felony assault is first-degree assault. It is a Class 3 felony. Convictions for this type of crime carry at least:
- 10 years in jail, and
- $3,000 in fines.
Even the least severe type of felony assault carries high penalties. Convictions for Class 5 felonies like vehicular assault come with at least:
- 1 year in jail, and
- $1,000 in fines.
The following table compares the elements and penalties of all of Colorado’s assault crimes:
| Colorado Crime | C.R.S. Code | Elements | Penalties |
| First Degree Assault | C.R.S. 18-3-202 | Intentionally and seriously hurting another person by means of physical force, often with a deadly weapon | Class 3 felony: 10 to 32 years in prison and $3,000 to $750,000 |
| Second Degree Assault | C.R.S. 18-3-203 | Intentionally or recklessly injuring another person with a deadly weapon | (most cases) Class 4 felony: 5 to 16 years in prison and $2,000 to $500,000 |
| Third Degree Assault | C.R.S. 18-3-204 | Knowingly, recklessly, or with criminal negligence injuring another person | Extraordinary risk Class 1 misdemeanor: Up to 18 months in jail and/or $1,000 |
| Vehicular Assault (Reckless Driving) | C.R.S. 18-3-205 | Reckless driving that results in serious bodily injury to another person | Class 5 felony: 1 to 3 years in prison and $1,000 to $100,000 |
| Vehicular Assault (DUI) | C.R.S. 18-3-205 | Intoxicated driving that results in serious bodily injury to another person | Class 4 felony: 2 to 6 years in prison and $2,000 to $500,000 |
In this article, our Denver criminal defense attorneys will address the following key issues regarding felony assault in Colorado law:
- 1. Elements
- 2. Defenses
- 3. Penalties
- 4. Related Crimes
- Frequently Asked Questions
- Additional Reading
1. Elements
A felony assault is a severe enough assault to be charged as a felony. Assaults are often divided into 3 degrees:
- First-degree assault,
- Second-degree assault, and
- Third-degree assault (C.R.S. 18-3-204).
However, assault crimes can also be divided into two levels:
- Misdemeanor assaults, and
- Felony assaults.
This alternative way of defining assault crimes separates severe offenses from less severe ones. It also avoids talking about the degrees of assault, which can be nuanced and confusing. It also includes vehicular assault in the discussion.
What is an assault?
An assault is the crime of intentionally or recklessly hurting someone. The circumstances of an assault case can influence the type of assault charge. The following factors make an assault more severe:
- The assault caused a serious injury,
- A deadly weapon was used during the offense, and
- The assault was intentional.
What is a felony?
Especially severe assaults are treated as felonies. In Colorado, a felony is a crime that can be punished by more than a year in jail. A felony is contrasted with a misdemeanor. Misdemeanors are criminal offenses that cannot carry more than a year in jail.
Types of felony assault in Colorado
There are four types of felony assault in Colorado:
- First-degree assault. This offense involves causing a serious injury with a deadly weapon.
- Second-degree assault. This offense involves intentionally causing a serious injury, without a deadly weapon. It can also be committed by recklessly causing a serious injury with a deadly weapon, like a car.
- Vehicular assault. This offense involves causing serious injury to another person while driving recklessly. It is often considered to be a particular application of second-degree assault.
- Vehicular assault while under the influence. This is a sentencing enhancement to vehicular assault. The penalty of a conviction for vehicular assault gets worse if you are under the influence of drugs or alcohol.
A conviction for any of these charges can carry over a year in jail. This makes them felony-level offenses.
2. Defenses
If you have been accused of felony assault in Colorado, there are several legal defenses you can raise. If successful, these defenses can reduce the penalties of a conviction. They can also be a complete defense that leads to an acquittal. Some of the most common defenses are:
- The assault was committed in the heat of passion,
- You were acting in self-defense or were trying to defend someone else from harm, and
- You did not intend to hurt someone else.
1) You acted in the heat of passion
If you can prove that you only assaulted someone else because you were in the heat of passion, it reduces the severity of the crime. The penalties of a conviction are reduced as a result. The heat of passion defense can succeed if you can show that:
- The victim provoked you into assaulting them,
- A reasonable person would have been provoked in the situation, and
- There was no time for you to cool off.
If successful, the heat of passion defense reduces the severity of a felony assault crime by two classes. For example, it turns a first-degree assault conviction from a Class 3 felony into a Class 5 felony; it also turns a second-degree assault conviction from a Class 4 felony into a Class 6 felony.
2) You acted in self-defense or the defense of someone else
A common legal defense to a felony assault charge is self-defense (or defense of others). Self-defense is lawful if both:
- You reasonably believed the other person was about to use unlawful force against you, and
- You reasonably believed you were using only as much force as was necessary to protect yourself.
Once you produce credible evidence that supports self-defense, prosecutors must disprove it beyond a reasonable doubt.
3) You lacked intent to harm
Felony assault accusations require you to act with a culpable state of mind. This often means you were behaving intentionally or recklessly. If you can show that the injury was just an accident, it can be a successful defense to a felony assault charge.
3. Penalties
By definition, all felony assault convictions come with at least a year in jail. This is just the minimum, though. A conviction for first-degree assault – the most serious type of felony assault in Colorado – carries up to:
- 32 years in jail, and
- $750,000 in fines.
There are also numerous collateral consequences of a felony conviction. These hidden penalties are often forgotten or overlooked. They include:
- Restrictions on your right to own or possess a firearm,
- Strict probation terms,
- Difficulties getting a job or keeping the one you have, and
- Voting restrictions.
4. Related Crimes
Several criminal offenses in Colorado are similar to felony assault. They include:
- Menacing (C.R.S. 18-3-206). This is the crime of putting someone in fear of imminent harm. It is often charged along with felony assault.
- Domestic violence (C.R.S. 18-6-801). If a felony assault is committed on someone you have an intimate relationship with, the judge will issue a protection order against you.
- Driving under the influence (C.R.S. 42-4-1301). Even if you do not cause an accident that leads to an injury, you can still be accused of DUI.
Frequently Asked Questions
Can a felony assault charge be reduced to a misdemeanor in Colorado?
Sometimes. Prosecutors may agree to reduce a felony assault charge through plea negotiations, particularly if the victim’s injuries were minor, there are weaknesses in the evidence, or the defendant has little or no criminal history. Whether a reduction is possible depends on the facts of the case and the defendant’s background.
What is the difference between assault and menacing in Colorado?
Assault generally requires causing bodily injury or attempting to cause bodily injury. Menacing involves knowingly placing another person in fear of imminent serious bodily injury through a threat or physical action. In some cases, prosecutors may file both charges arising from the same incident.
Can I be charged with felony assault if the victim was not seriously injured?
Yes. Some Colorado felony assault offenses do not require a permanent or life-threatening injury. For example, a person can face felony assault charges for causing bodily injury with a deadly weapon or for assaulting certain protected victims such as peace officers, firefighters, or emergency medical providers.
Is a broken bone considered serious bodily injury in Colorado?
Often yes. Colorado law generally considers injuries involving a substantial risk of death, permanent disfigurement, protracted loss or impairment of a bodily function, or serious fractures to be serious bodily injuries. Whether a particular injury qualifies is determined on a case-by-case basis.
Can a felony assault conviction be sealed in Colorado?
Sometimes. Many lower-level felony assault convictions can be sealed if all statutory requirements are met and the waiting period has expired. In general, class 4, 5, and 6 felony assault convictions may be eligible for sealing three years after the case ends. However, class 3 felony assault convictions are not eligible for sealing. Dismissed assault charges, acquittals, and many other non-conviction records are generally eligible for immediate sealing.
Can I claim self-defense to a felony assault charge?
Possibly. Colorado law allows people to use reasonable force to defend themselves or others from the imminent use of unlawful force. If there is credible evidence supporting self-defense, prosecutors generally must prove beyond a reasonable doubt that the defendant did not act in lawful self-defense.
What happens if the alleged victim wants to drop the assault charges?
The alleged victim cannot directly dismiss a criminal case. Once charges are filed, the prosecutor decides whether to continue the prosecution. However, the victim’s wishes may influence plea negotiations, sentencing recommendations, or the prosecutor’s decision whether to proceed.
Is felony assault a crime of violence in Colorado?
Many felony assault charges are classified as crimes of violence when they involve the use of a deadly weapon or cause serious bodily injury. A crime-of-violence designation can significantly increase the mandatory prison sentence and limit a judge’s sentencing discretion.
Can I own a firearm after a felony assault conviction?
Generally no. A felony conviction usually results in the loss of both Colorado and federal firearm rights. Restoring those rights can be difficult and often requires a pardon or other extraordinary relief.
Will an out-of-state assault conviction count against me in Colorado?
Often yes. Colorado courts may consider substantially similar out-of-state convictions when determining criminal history, bond conditions, sentencing, and other aspects of a criminal case.
Additional Reading
For more in-depth information, refer to these informational articles:
- Assault and Battery by the Reckless Motorist – Journal of Criminal Law & Criminology.
- Not So Simple: How Simple Assault and Battery Became Distorted in the Context of Crimes Involving Moral Turpitude – Washburn Law Journal.
- Provocation–Assault and Battery as Sufficient Provocation to Reduce an Intentional Homicide to Manslaughter – Kentucky Law Journal.