There are three different degrees of assault charges. Misdemeanor assault is called Third Degree Assault in Colorado. Both Second Degree Assault and First Degree Assault are felony charges, usually involving mandatory sentences to prison upon conviction.
A Misdemeanor assault charge is punishable by a maximum sentence of two years in county jail. In order to reach a verdict of guilty to the charge of Third Degree Assault, a jury must find that the defendant knowingly or recklessly caused bodily injury to a person. The necessary element of “injury” is easily proven, since pain qualifies as injury — even if there is no physical damage to the person. There is no mandatory sentencing for Third Degree Assault, meaning that probation is an option available to the judge at sentencing. If Third Degree Assault is labeled as domestic violence, then the judge must include 36 weeks of domestic violence treatment with the sentence.
First Degree Assault and Second Degree Assault are felony charges that both require a mandatory sentence to prison if there is a conviction (with some exceptions). As with any charge involving a mandatory prison sentence, the district attorney has a great deal of leverage during plea negotiations. Defense lawyers will only advise clients to go to trial in these cases if there is a clear chance of victory at trial, or in cases where the plea offer is too harsh to accept.
Crimes of Violence
First Degree Assault, and most types of Second Degree Assault, are defined as Crimes of Violence. A conviction for a Crime of Violence requires the judge to sentence the defendant to a term of incarceration of at least the midpoint of the presumptive sentencing range for the offense. This midpoint is 5 years in prison for Second Degree Assault, and 10 years for First Degree Assault. If the case involved the mitigating factor that the defendant acted out of “heat of passion,” this removes the mandatory aspect of the sentence. The judge will then be allowed to sentence the defendant to probation, provided the defendant is otherwise probation eligible.
Self defense is a common defense to assault charges. Even in cases where the district attorney is able to prove all of the elements of the assault, the defendant may nonetheless be acquitted if the jury finds that he acted in self defense. A person is legally allowed to use force to protect himself. However, the amount of force used must be justified by the threat posed. For example, you may not use lethal force simply to avoid a fight. You may, however, use lethal force where there is a credible threat to your life. Self defense is commonly asserted by the defense in domestic violence cases, as there is often violence from both parties involved in the incident.