Whether you have been charged with second degree assault or know someone who has, it’s important that you familiarize yourself with all the facts surrounding this charge, and what it will mean for the person or people involved.
Second degree assault is a criminal charge against a person who has intentionally cause bodily injury to another person. It is less severe than first degree assault, but more serious than third degree assault. Because it is a criminal charge, it will result in a permanent criminal record, and could come with some severe consequences.
Here we will discuss what you need to know about second degree assault, and what you can expect if you are facing this charge. Hiring a defense attorney who specializes in assault defense can prepare you to know how to best handle second degree assault.
Second Degree Assault
The main thing separating second degree assault from third degree assault is intent. While third degree assault involves knowingly harming another person, second degree assault involves intentionality. It is not severe as first degree assault, which involves use of a deadly weapon.
The Colorado Revised Statutes define second degree assault in the following way.
“(1) A person commits the crime of assault in the second degree if:
(a) Repealed by Laws 1994, H.B.94-1126, § 8, eff. July 1, 1994.
(b) With intent to cause bodily injury to another person, he or she causes such injury to any person by means of a deadly weapon; or
(c) With intent to prevent one whom he or she knows, or should know, to be a peace officer, firefighter, emergency medical care provider, or emergency medical service provider from performing a lawful duty, he or she intentionally causes bodily injury to any person; or
(c.5) With intent to prevent one whom he or she knows, or should know, to be a peace officer, firefighter, or emergency medical service provider from performing a lawful duty, he or she intentionally causes serious bodily injury to any person; or
(d) He recklessly causes serious bodily injury to another person by means of a deadly weapon; or
(e) For a purpose other than lawful medical or therapeutic treatment, he intentionally causes stupor, unconsciousness, or other physical or mental impairment or injury to another person by administering to him, without his consent, a drug, substance, or preparation capable of producing the intended harm.”
(f) With intent to cause bodily injury to another person, he or she causes serious bodily injury to that person or another;
The definition goes on to include violent force used against a peace officer, firefighter, emergency medical care provider, or emergency medical service provider while lawfully confined or in custody.
It’s a Felony
Unlike third degree assault, which is classified as a misdemeanor, second degree is a class 4 felony. A felony is a more serious offense than a misdemeanor, and carries an increase in potential prison time, fines, and other consequences.
In general, in order for assault to be considered a felony, the prosecution must prove intent to cause bodily harm. Most often a deadly weapon is involved, although if enough harm is caused without one it may still be considered a felony.
What is meant by intent? And how is it determined?
It used to be that battery referred to actual bodily harm, whereas assault referred to intent to harm. However, that has changed in the state of Colorado, and now assault refers to both intent to harm and actual harm done.
What this means is that there is no such thing as accidental assault. The main thing defining the intent in second degree assault is that the assaulter followed through on an intention to cause bodily harm or injury to the victim.
With third degree assault, it can sometimes be enough to charge the assaulter if the victim simply fears bodily harm, but intent to injure followed by actual injury will typically qualify as second degree assault, and thus a felony charge.
It’s a Crime of Violence
Violent crimes are serious offenses that include armed robbery, endangerment, kidnapping, arson, extortion and rape. Thus second degree assault, which qualifies as a violent crime (except for subsection e), is considered extremely serious as well, and comes with certain mandatory consequences.
In the case of second degree assault, because it qualifies as a violent crime, a judge must sentence the defendant to at least half, but not more than twice the maximum, of the presumptive incarceration range.
Affirmative-defense is an admission that the offender committed the crime in question, but did so out of necessity because of fear of bodily harm or death. The threat of harm must be serious and imminent, and cannot be proven in a court of law by mere threats or heated conversations.
If a defense attorney determines that self-defense is a reasonable claim, he or she will need to present evidence to support it, and then it is up to the prosecutor to disprove this claim. If the person charged is found to have acted in self defense, he or she will be acquitted of all charges.
Heat of Passion
In the event that a second degree assault is committed in the “heat of passion,” it’s possible that a judge will determine the crime to be a class 6 felony, which will potentially involve a reduction of the sentence. “Heat of passion” is defined in the following way under the revised Colorado statutes:
“If assault in the second degree is committed under circumstances where the act causing the injury is performed upon a sudden heat of passion, caused by a serious and highly provoking act of the intended victim, affecting the person causing the injury sufficiently to excite an irresistible passion in a reasonable person, and without an interval between the provocation and the injury sufficient for the voice of reason and humanity to be heard, it is a class 6 felony.”
Sentencing and Penalties
As stated above, assault comes with certain prescribed penalties due to its violent nature. Unless the crime is deemed a class 6 felony (as seen under “heat of passion”), a second degree assault conviction is a class 4 felony. The penalties that may result from a second degree assault conviction include:
- Imprisonment: In most cases, a class 4 felony carries a mandatory minimum — sentence of 5 years and a maximum of 16 years.
- Parole: The mandatory sentence of parole is 3 years.
- Fines: The minimum fine of a class 4 felony is $2,000, and the maximum fine is $500,000.
- Unlike with third degree assault (misdemeanor), the sentence is carried out in a state facility rather than a local or county facility.
- Permanent record as a convicted felon.
Prosecution and Defense
The severity of penalties for second degree assault charges often depend on the ability of the prosecution to determine and present the level of intent of the offender. The prosecuting attorney will seek to do this by offering evidence.
Defense attorneys can help the person being charged with the crime to determine the best possible route to take to reduce his or her sentence. Defense in the case of second degree assault may include:
- Duress (being forced to commit the crime by another)
- Lesser of 2 evils/justification (assault was necessitated to prevent imminent public or private injury)
- Executing public duty
- Lack of intent
- Heat of Passion
By acquiring a defense attorney with expertise in the defense of assault charges, you will be better able to navigate the complexity of second degree assault charges and find the help you need in determining the best path to take.
Your attorney will help you go over any evidence the prosecutor might use, and aid you in determining what evidence could be inadmissible in a court of law, in order to prevent that evidence from being used.
When a jury is notified of the elements of your case, it’s through a set of instructions known as “jury instructions.” When you hire a criminal defense attorney, he will be able to mold these instructions to your case before they are presented, making sure that any unnecessary or unhelpful instructions are omitted.
Because assault charges and court proceedings will vary based on the state in which the crime occurred, as well as on the local jurisdiction, a good defense attorney is crucial in determining what steps should be taken.
Second degree assault is a serious crime that comes with severe consequences, including mandatory minimum incarceration sentences and mandatory minimum fines. It is a felony that remains with the offender for the rest of his or her life, so finding the best defense attorney to handle your case is the smartest thing you can do to ensure you receive a fair trial and the best results possible.
If you are in need of a criminal defense attorney as a result of a third degree assault charge, contact Nicolas M. Geman for expert, proven services.