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§18-3-205, Colorado Vehicular Assault Cases Colorado Criminal Defense Law

By Colorado Criminal Defense Lawyer for the Defense of Colorado Vehicular Assault Charges
H. Michael Steinberg

If you are facing charges of Vehicular Assault 18-3-205 or Vehicular homicide in Colorado – you MUST assert your right to remain silent and then immediately contact the Steinberg Colorado Criminal Defense Law Firm of H. Michael Steinberg – The Responsible Choice For A Colorado Criminal Defense Lawyer.

Colorado has one of the most heavily enforced – and often charged – Vehicular Assault Laws in the nation – found at §18-3-205, and analyzed below, this law has some serious sanctions

What follows is law broken out as the actual jury instruction given to jury in these cases – this format breaks out the elements of the crime to make it easy to understand:

Colorado Vehicular Assault §18-3-205

The elements of the crime of vehicular assault are:

1. That the defendant,

2. in the State of Colorado, at or about the date and place charged,

3. operated or drove a motor vehicle,

4. [in a reckless manner, and]

-or-

[while under the influence of [alcohol] [one or more drugs], or a combination of both alcohol and one or more drugs, and]

5. this conduct was the proximate cause of serious bodily injury to another person.

6. [without the affirmative defense in instruction number __________.]

After considering all the evidence, if you decide the prosecution has proven each of the elements

beyond a reasonable doubt, you should find the defendant guilty of vehicular assault.

After considering all the evidence, if you decide the prosecution has failed to prove any one or more of the elements beyond a reasonable doubt, you should find the defendant not guilty of vehicular assault.

Possible Punishment For The Crime of Colorado Vehicular Assault §18-3-205

Sub Section (a) Reckless Driving Vehicular Assault

1 (a) If a person operates or drives a motor vehicle in a reckless manner, and this conduct is the proximate cause of serious bodily injury to another, such person commits vehicular assault. – This is a Class 5 Felony in Colorado. (Presumptive Range 1 to 3 years in the Department of Corrections).

Sub Section (b) Alcohol and Drug Related Vehicular Assault

(b)(I) If a person operates or drives a motor vehicle while under the influence of alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, and this conduct is the proximate cause of a serious bodily injury to another, such person commits vehicular assault. This is a strict liability crime. This is a Class 4 Felony – Presumptive Range is 2 to 6 years in the Department of Corrections.

Possible Defenses To Colorado Vehicular Assault Cases

A successful defense to a charge of Vehicular Assault charges must start with a proper accident reconstruction. It is critical to show that an accident and injuries – if any – was the other person’s fault. In addition, it must be shown that the Defendant was not “reckless”.

The legal standard of “recklessness” in Colorado is that the Defendant was aware of and consciously disregarded a substantial and unjustifiable risk that the result would occur or that a dangerous circumstance existed.

The risk must be of such a nature and agree that disregard of such risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.

The target here is demonstrating to the jury that the Defendant did not ignore a “substantial and unjustifiable risk” and that his conduct was not a “gross deviation from the standard of the norm“. If the Prosecutor is claiming that speed was a factor, then it must be shown that the driven speed was not a “gross deviation from the norm”.

Finally an an engineer should be retained to check the car for any vehicle defects which may account for the accident.

If alcohol was a factor, then the standard DUI defenses apply to show that breath / blood testing devices were inaccurate in their measurements or that the Defendant was not under the influence of alcohol or drugs.

Blood Alcohol Tests

As happens in Driving Under the Influence cases, if the police have probable cause for the commission of Vehicular Assault, you must legally submit to a an analysis of blood, breath or urine. If you refuse to submit to testing, this is considered “a refusal” and will require at least a year suspension of the driver’s license. C.R.S. 42-2-126 (3).

If you become argumentative or obstinate during the testing procedure this is treated as a refual to submit to testing.

For more information, Please see our DUI / DWAI page.

Forcing – Compelling The Blood Alcohol Test

This is kind of shocking if you understand and are familiar with criminal law… It flies in the face of concepts of due process

If you are investigated for Colorado DUI / DWAI an officer requests you to take a blood test – and you refuse , the officer with probable cause for the crime of Colorado Vehicular Assault can actually force a driver to submit to a test to determine the presence and level of alcohol or drugs.

There are many other considerations that go into the defense of your Colorado Vehicular Assault charge, so it important to consult an experienced Colorado lawyer who knows and understands Vehicular Assault.

The Basic Elements of the Offense of Alcohol or Drug Bases Vehicular Assault

This statute requires proof of two elements for conviction in addition to that of driving while under the influence: First, driving in a reckless manner; and second, the infliction of bodily injury while so doing. – This is called a STRICT LIABILITY CRIME

Plan B Defenses

“Miranda Rights Violation”.

In Colorado the standard of whether any inculpatory statement (i.e., a statement which tends to admit guilt) is admissible into evidence is based upon a “voluntariness” standard. If it can be demonstrated that the police coerced you (i.e., intimidated you) into making a confession or inculpatory statement, or that they did not properly read you your Miranda Rights, then any statements that “inculpate” you may be suppressed and any evidence gathered as a direct result of those statements.

The Denial of Right to Counsel

This is another common defense and occurs when a suspect is in custody and requests to speak to their lawyer and this is denied and questioning continues.

Other Defenses

These include challenging the validity of any search warrant, or whether there were any “forensic flaws” during the investigation of your case. This could include exposing flawed procedures regarding blood, breath, and urine testing; fingerprints analysis; DNA testing; etc. Lastly, one of the most common defenses is exposing sloppy or misleading police reports which include everything from misstatements, false statements, flawed photo line-ups and inaccurate crime scene reconstruction.

Here is the ENTIRE Colorado STATUTE for your review:

Vehicular Assault (18-3-205)

1.(a) If a person operates or drives a motor vehicle in a reckless manner, and this conduct is the proximate cause of serious bodily injury to another, such person commits vehicular assault.

(b) (I) If a person operates or drives a motor vehicle while under the influence of alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, and this conduct is the proximate cause of a serious bodily injury to another, such person commits vehicular assault. This is a strict liability crime.

(II) For the purposes of this subsection (1), one or more drugs shall mean all substances defined as a drug in section 12-22-303 (13), C.R.S., and all controlled substances defined in section 12-22-303 (7), C.R.S., and glue-sniffing, aerosol inhalation, or the inhalation of any other toxic vapor or vapors as defined in section 18-18-412.

(III) The fact that any person charged with a violation of this subsection (1) is or has been entitled to use one or more drugs under the laws of this state shall not constitute a defense against any charge of violating this subsection (1).

(IV) “Driving under the influence” means driving a vehicle when a person has consumed alcohol or one or more drugs, or a combination of alcohol and one or more drugs, which alcohol alone, or one or more drugs alone, or alcohol combined with one or more drugs affect such person to a degree that such person is substantially incapable, either mentally or physically, or both mentally and physically, of exercising clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.

(c) Vehicular assault, in violation of paragraph (a) of this subsection (1), is a class 5 felony. Vehicular assault, in violation of paragraph (b) of this subsection (1), is a class 4 felony.

2.In any prosecution for a violation of subsection (1) of this section, the amount of alcohol in the defendant’s blood or breath at the time of the commission of the alleged offense, or within a reasonable time thereafter, as shown by analysis of the defendant’s blood or breath, shall give rise to the following presumptions:

(a) If there was at such time 0.05 or less grams of alcohol per one hundred milliliters of blood, or if there was at such time 0.05 or less grams of alcohol per two hundred ten liters of breath, it shall be presumed that the defendant was not under the influence of alcohol.

(b) If there was at such time in excess of 0.05 but less than 0.08 grams of alcohol per one hundred milliliters of blood, or if there was at such time in excess of 0.05 but less than 0.08 grams of alcohol per two hundred ten liters of breath, such fact may be considered with other competent evidence in determining whether or not the defendant was under the influence of alcohol.

(c) If there was at such time 0.08 or more grams of alcohol per one hundred milliliters of blood, or if there was at such time 0.08 or more grams of alcohol per two hundred ten liters of breath, it shall be presumed that the defendant was under the influence of alcohol.

3.The limitations of subsection (2) of this section shall not be construed as limiting the introduction, reception, or consideration of any other competent evidence bearing upon the question of whether or not the defendant was under the influence of alcohol.

4.(a) If a law enforcement officer has probable cause to believe that any person was driving a motor vehicle in violation of paragraph (b) of subsection (1) of this section, such person, upon the request of the law enforcement officer, shall take, and complete, and cooperate in the completing of any test or tests of such person’s blood, breath, saliva, or urine for the purpose of determining the alcoholic or drug content within his or her system. The type of test or tests shall be determined by the law enforcement officer requiring the test or tests.

[ If You REFUSE To Take a Blood Alcohol Test – You will lose your driver’s license]

If such person refuses to take, or to complete, or to cooperate in the completing of any such test or tests, such test or tests may be performed at the direction of a law enforcement officer having such probable cause, without such person’s authorization or consent. If any person refuses to take, or to complete, or to cooperate in the taking or completing of any test or tests required by this paragraph (a), such person shall be subject to license revocation pursuant to the provisions of section 42-2-126 (2), C.R.S. When such test or tests show that the amount of alcohol in a person’s blood was in violation of the limits provided for in section 42-2-126 (2) (a) (I), (2) (a) (I.5), (2) (a) (III), or (2) (a) (IV), C.R.S., such person shall be subject to license revocation pursuant to the provisions of section 42-2-126, C.R.S.

(b) Any person who is required to submit to testing shall cooperate with the person authorized to obtain specimens of his blood, breath, saliva, or urine, including the signing of any release or consent forms required by any person, hospital, clinic, or association authorized to obtain such specimens. If such person does not cooperate with the person, hospital, clinic, or association authorized to obtain such specimens, including the signing of any release or consent forms, such noncooperation shall be considered a refusal to submit to testing.

(c) The tests shall be administered at the direction of a law enforcement officer having probable cause to believe that the person committed a violation of subparagraph (I) of paragraph (b) of subsection (1) of this section and in accordance with rules and regulations prescribed by the state board of health concerning the health of the person being tested and the accuracy of such testing. Strict compliance with such rules and regulations shall not be a prerequisite to the admissibility of test results at trial unless the court finds that the extent of noncompliance with a board of health rule has so impaired the validity and reliability of the testing method and the test results as to render the evidence inadmissible.

In all other circumstances, failure to strictly comply with such rules and regulations shall only be considered in the weight to be given to the test results and not to the admissibility of such test results. It shall not be a prerequisite to the admissibility of test results at trial that the prosecution present testimony concerning the composition of any kit used to obtain blood, urine, saliva, or breath specimens. A sufficient evidentiary foundation concerning the compliance of such kits with the rules and regulations of the department of public health and environment shall be established by the introduction of a copy of the manufacturer’s or supplier’s certificate of compliance with such rules and regulations if such certificate specifies the contents, sterility, chemical makeup, and amounts of chemicals contained in such kit.

(d) No person except a physician, a registered nurse, a paramedic as certified in part 2 of article 3.5 of title 25, C.R.S., an emergency medical technician as defined in part 1 of article 3.5 of title 25, C.R.S., or a person whose normal duties include withdrawing blood samples under the supervision of a physician or registered nurse shall be entitled to withdraw blood for the purpose of determining the alcoholic or drug content therein.

In any trial for a violation of paragraph (b) of subsection (1) of this section, testimony of a law enforcement officer that he witnessed the taking of a blood specimen by a person who he reasonably believed was authorized to withdraw blood specimens shall be sufficient evidence that such person was so authorized, and testimony from the person who obtained the blood specimens concerning such person’s authorization to obtain blood specimens shall not be a prerequisite to the admissibility of test results concerning the blood specimens obtained.

No civil liability shall attach to any person authorized to obtain blood, breath, saliva, or urine specimens or to any hospital, clinic, or association in or for which such specimens are obtained pursuant to this subsection (4) as a result of the act of obtaining such specimens from any person if such specimens were obtained according to the rules and regulations prescribed by the state board of health; except that such provision shall not relieve any such person from liability for negligence in the obtaining of any specimen sample.

(e) Any person who is dead or unconscious shall be tested to determine the alcohol or drug content of his blood or any drug content of his system as provided in this subsection

(4). If a test cannot be administered to a person who is unconscious, hospitalized, or undergoing medical treatment because the test would endanger the person’s life or health, the law enforcement agency shall be allowed to test any blood, urine, or saliva which was obtained and not utilized by a health care provider and shall have access to that portion of the analysis and results of any tests administered by such provider which shows the alcohol or drug content of the person’s blood or any drug content within his system. Such test results shall not be considered privileged communications, and the provisions of section 13-90-107, C.R.S., relating to the physician-patient privilege shall not apply. Any person who is dead, in addition to the tests prescribed, shall also have his blood checked for carbon monoxide content and for the presence of drugs, as prescribed by the department of public health and environment. Such information obtained shall be made a part of the accident report.

(f) If a person refuses to take, or to complete, or to cooperate in the completing of any test or tests as provided in this subsection (4) and such person subsequently stands trial for a violation of subsection (1) (b) of this section, the refusal to take, or to complete, or to cooperate with the completing of any test or tests shall be admissible into evidence at the trial, and a person may not claim the privilege against self-incrimination with regard to the admission of his refusal to take, or to complete, or to cooperate with the completing of any test or tests.

(g) Notwithstanding any provision in section 42-2-1301.1, C.R.S., concerning requirements which relate to the manner in which tests are administered, the test or tests taken pursuant to the provisions of this section may be used for the purposes of driver’s license revocation proceedings under section 42-2-126, C.R.S., and for the purposes of prosecutions for violations of section 42-4-1301 (1) or (2), C.R.S.

5.In all actions, suits, and judicial proceedings in any court of this state concerning alcohol-related or drug-related traffic offenses, the court shall take judicial notice of methods of testing a person’s alcohol or drug level and of the design and operation of devices, as certified by the department of public health and environment, for testing a person’s blood, breath, saliva, or urine to determine his alcohol or drug level. This subsection (5) shall not prevent the necessity of establishing during a trial that the testing devices used were working properly and that such testing devices were properly operated. Nothing in this subsection (5) shall preclude a defendant from offering evidence concerning the accuracy of testing devices

Feel Free To Call Our Firm

H. Michael Steinberg has been a Colorado criminal law specialist attorney for 29 years. For the First 13 years of his career, he was an Arapahoe – Douglas County District Attorney Senior prosecutor. In 1999 he formed his own law firm for the defense of Colorado criminal cases. In addition to handling tens of thousands of cases in the trial courts of Colorado, he has written hundreds of articles regarding the practice of Colorado criminal law and frequently provides legal analysis on radio and television, appearing on the Fox News Channel, CNN and Various National and Local Newspapers and Radio Stations. Please call him at your convenience at 720-220-2277