Is a Concussion Serious Bodily Injury Under Colorado’s Assault Laws?
By H. Michael Steinberg Colorado Criminal Defense Lawyer
Introduction – Colorado First and Second Degree Felony Assaults v. Third Degree Misdemeanor Assaults and the Role of Serious Bodily Injury
To understand a diagnosis of a finding that an alleged victim of a Colorado assault case suffered serious bodily injury, one must begin with a close analysis of the different levels of possible charges of assault under Colorado law.
Three “Degrees” of Assault Crimes Under Colorado Law
Colorado criminal law divides assault crimes into three degrees – First Degree, Second Degree, and Third Degree.
While there are various “special victim” enhancers that may be applied depending on the facts of the case, for example, if the alleged victim is a police or peace officer, elderly, or disabled, or other enhancers such as the alleged use of a deadly weapon that can impact charging decisions and possible sentencing outcomes, the basic “foundational” assault crimes only are the focus of this short article.
Colorado Aggravated Assaults
The Colorado felony assault charges filed in this area fall into two basic categories:
First Degree Assault – Section 18-3-202.
A person commits First Degree Assault if:
1. with the necessary intent to cause serious bodily injury to another person, he causes serious bodily injury to any person by means of a deadly weapon, or
2. with the necessary intent to disfigure another person seriously and permanently, or to destroy, amputate, or disable permanently a member or organ of his body, he causes such an injury to any person, or
3. under circumstances manifesting extreme indifference to the value of human life, he knowingly engages in conduct that creates a grave risk of death to another person, and thereby causes serious bodily injury to any person, or
4. with the necessary intent to cause serious bodily injury to a peace officer, firefighter, judicial officer, or detention facility employee, he or she uses a deadly weapon to threaten the individual (who is engaged in the performance of his or her duties), and the offender knows or reasonably should know that the victim is a peace officer, firefighter, judicial officer, or detention facility employee.
Sentencing for First Degree Assault
The presumptive range of sentencing for this Class 3 Felony – First Degree Assault – is possible incarceration in prison of from 4 to 24 years, with fines from $3,000.00 to $750,000.00 depending on the facts and evidence of the case.
Second Degree Assault – Section 18-3-203
A person commits Second Degree Assault if:
1. with the necessary intent to cause bodily injury to another person, he or she causes such injury to any person by means of a deadly weapon, or
2. with the necessary intent to prevent one whom he or she knows, or should know, to be a peace officer or firefighter from performing a lawful duty, he or she intentionally causes bodily injury to any person, or
3. he or she recklessly causes serious bodily injury to another person by means of a deadly weapon, or
4. with the necessary intent to cause bodily injury to another person, he causes serious bodily injury to that person or another.
Sentencing for Second Degree Assault
The presumptive range of sentencing for this Class 4 Felony – Second Degree Assault – sis possible incarceration in prison of from 2 to 8 years, with fines from $2,000.00 to $500,000.00
Colorado Misdemeanor Assault
Third Degree Assault 18-3-204
A person commits Third Degree Assault if:
He or she knowingly, recklessly, or with criminal negligence inflicts bodily injury on another person.
Sentencing for Third Degree Assault
The presumptive range of sentencing for this Class 1 Misdemeanor is up to 2 years in the county jail and fines of up to $5,000.00.
A Critical Finding – Bodily Injury or Serious Bodily Injury?
A finding of “serious bodily injury” by a medical expert in a Colorado criminal case can change the entire complexion of a case. The absence of such a finding usually means the case is charged as a misdemeanor assault. The finding of serious bodily injury means a felony filing with the possibility, even the likelihood in some cases, of a prison sentence.
Serious bodily injury means:
bodily injury that, 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.
Bodily injury means:
physical pain, illness, or any impairment of physical or mental condition. A judge or jury must often determine whether an alleged victim has suffered bodily injury based on the facts of a case.
Defining the Injury
At trial, the jury, (or the judge in a bench trial), must make a factual finding based on the evidence admitted, as to whether the state has proven beyond a reasonable doubt that the alleged victim has suffered serious bodily injury.
Therefore a key weakness and a possible area upon which to build a defense to the felony assault charges may be the state’s medical evidence of serious bodily injury.
Does a Diagnosis of Concussion Meet the Definition of Serious Bodily Injury?
The word concussion is derived from the Latin concutere, meaning “to shake violently.” In the context of an assault, a concussion is usually caused by a direct blow to the head.
The issue is this:
Is a medical opinion of a diagnosis of a concussion suffered by an alleged victim in a Colorado assault case – always the equivalent of a finding of serious bodily injury?
Revisiting and a further breakdown of the “elements” of serious bodily injury may be helpful here.
Recall that serious bodily injury is defined into its components as:
Serious bodily injury means:
A substantial risk of permanent disfigurement or protracted loss or impairment of any part or organ of the body, or
Breaks, fractures, or burns of the second or third degree.
[“Fractures” involve the breaking of hard tissue such as bone, tooth, or even just cartilage (broken nose)].
Concussions reflect the fact that the brain is made of soft tissue cushioned by spinal fluid and encased by the skull. During an assault, if the alleged victim suffers one or more blows to the head, the brain can actually move around inside of the skull and traumatic brain injuries can result from bruising, damage to the blood vessels and to the nerves in the brain.
Attribution: WEB MD Concussion: Symptoms, Causes, Treatments
The evidence in a case where a concession is alleged to have been sustained by the victim is usually the result of a diagnosis based on observations of the witnesses, the victim’s own testimony, and a formal opinion of a medical opinion.
Outward Objective and Subjective Manifestations of a Concussion
The Mayo Clinic describes the symptoms of a concussion or a traumatic brain injury (TBI) as:
Confusion or feeling dazed
Nausea or vomiting
Balance problems or dizziness
Sensitivity to light
Sensitivity to noise
Ringing in ears
Irritability or other behavior or personality changes
Loss of memory
Fatigue or sleepiness
Loss of consciousness
Forgetfulness such as repeating yourself
Slowed response to questions
Problems with sleep
Problems with taste or smell
The state prosecutor will attempt, in support of a filing of felony assault, to use evidence of a concussion from several sources to establish support for a finding of serious bodily injury.
Attacking a Diagnosis of Serious Bodily Injury – a Matter of Degree
A diagnosis by a medical professional of a concussion does NOT mean the victim has always suffered injuries constituting be serious bodily injury.
Three “Grades” of Concussions
Concussions are “graded” based on the severity of the injury.
There are three grades of concussions:
Grade 1: Mild, with symptoms that last less than 15 minutes and involve no loss of consciousness.
Grade 2: Moderate, with symptoms that last longer than 15 minutes and involve no loss of consciousness.
Grade 3: Severe, in which the person loses consciousness, sometimes for just a few seconds.
Grade 1 or grade 2 concussions may resolve in as little as several minutes, hours, days, or even a week.
The loss of consciousness that follows a grade 3 concussion, the kind of concussion that requires an immediate evaluation and care of a physician is a different matter and can meet the required finding of serious bodily injury.
Diagnostic Tests and the Defense Expert Witness
A physician evaluating a concussion most often will order a cranial computerized tomography (CT) scan or magnetic resonance imaging (MRI) test to rule out bleeding or other serious brain injuries from the concussion.
A diagnosis of the severity of a concussion should never be the result of one test but must be the result of a thorough examination which should include a physical exam to include:
strength, balance, coordination, and reflexes,
the alleged victim’s medical history,
details about the mechanism of injury,
observable symptoms by the physician and other witnesses, and
neuropsychological tests to determine any cognition and memory losses following the concussion.
Summary and Conclusion – the “Offensive” Use of Medical Evidence – the Independent Medical Evaluation
Diagnosing possible brain injuries such as a concussion is an inexact science. If possible, an independent review of the state expert’s diagnosis of a concussion that is alleged to meet the definition of serious bodily injury should be performed.
When a conviction may mean the loss of one’s freedom, the money invested in an independent medical evaluation is well worth turning over every stone.
Criminal defense lawyers are not doctors. If possible, retain an expert. That expert should be objective and in no way involved in the defense case theory or defense strategies.
If possible the defense should attempt to hire the superior more qualified expert who can professionally “outrank” the state’s witness. It is notable that Colorado has some of the best medical experts in the world such as University of Colorado professors as well as dozens of physicians who are recognized leaders in their fields.
A diagnosis of a concussion does not necessarily mean that an injury to an alleged victim in a Colorado assault case has suffered serious bodily injury.
A complete and accurate independent medical analysis of the state’s diagnosis of the injury and the mechanism of injury may make the difference between a felony as compared to a misdemeanor finding by a jury.
A Colorado criminal defense attorney can effectively use medical science to raise reasonable doubt on the key and critical issue of a finding, or the lack of finding, of serious bodily injury at the trial of a person falsely accused of felony assault.
“A person charged with a crime requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.”
United States Supreme Court – Powell v. Alabama, 287 U.S. 45, 69 (1932)
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ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at email@example.com – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge of Colorado Criminal Law and his 38 plus years of experience in the courtrooms of Colorado may give him the edge you need to properly defend your case.