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Colorado Criminal Law Update – Colorado May Upgrade Strangulation To A Felony – Even Without Serious Bodily Injury

By H. Michael Steinberg Colorado Criminal Defense Lawyer

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Colorado Criminal Law Update – Colorado May Upgrade Strangulation To A Felony – Even Without Serious Bodily Injury

Colorado Criminal Law Update – Colorado May Upgrade Strangulation To A Felony – Even Without Serious Bodily Injury – It appears as if Colorado may make it possible for District Attorney’s across the State of Colorado to make the act of “strangulation” a felony first or second degree assault crime.

The Proposed 2016 New Sections regarding Strangulation That Would Be Added To Existing Laws

What follows are the new sections that are being proposed in the Colorado State Legislature. If they are enacted into law – I will update this article. Also included are present laws and definitions relevant to the article below.

18-3-202. Assault in the First Degree

(1) A person commits the crime of assault in the first degree if:

…

(g) With the intent to cause serious bodily injury, he or she impedes or restricts the breathing or circulation of the blood of another person by applying pressure to the neck or by blocking the nose or mouth of the other person and thereby causes serious bodily injury.

Colorado Definition: Serious Bodily Injury:

Serious Bodily injury is bodily injury which, 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,

Breaks,

Fractures, or

Burns of the second or third degree

The use of a medical expert is almost always needed at trial to substantiate the Serious Bodily Injury.

18-3-203. Assault in the Second Degree

(1) A person commits the crime of assault in the second degree if:

…..

(i) with the intent to cause bodily injury, he or she impedes or restricts the breathing or circulation of the blood of another person by applying pressure to the neck or by blocking the nose or mouth of the other person and thereby causes bodily injury.

Colorado Definition: Bodily Injury

“Bodily injury“means physical pain, illness, or any impairment of physical or mental condition.

18-1.3-401. Felonies classified – presumptive penalties.

14 (10) (b) Crimes that present an extraordinary risk of harm to society shall include the following:

(XVIII) assault in the second degree, as described in 21 section 18-3-203 (1) (i).

§ 18-1.3-406. Mandatory Sentences for Violent Crimes – Definitions

(1) (a) Any person convicted of a crime of violence shall be sentenced pursuant to the provisions of section 18-1.3-401(8) to the department of corrections for a term of incarceration of at least the midpoint in, but not more than twice the maximum of, the presumptive range provided for such offense in section 18-1.3-401(1) (a), as modified for an extraordinary risk crime pursuant to section 18-1.3-401(10), without suspension;

…..

(2) (a) (I) “Crime of violence” means any of the crimes specified in subparagraph (II) of this paragraph (a) committed, conspired to be committed, or attempted to be committed by a person during which, or in the immediate flight therefrom, the person:

(A) Used, or possessed and threatened the use of, a deadly weapon; or

(B) Caused serious bodily injury or death to any other person except another participant.

(II) Subparagraph (I) of this paragraph (a) applies to the following crimes:

(A) Any crime against an at-risk adult or at-risk juvenile;

(B) Murder;

(C) First or Second degree assault;

(D) Kidnapping;

(E) A sexual offense pursuant to part 4 of article 3 of this title;

(F) Aggravated robbery;

(G) First degree arson;

(H) First degree burglary;

(I) Escape;

(J) Criminal extortion; or

(K) First or second degree unlawful termination of pregnancy.

Problems With A New Colorado The Strangulation Law And Why It Should Not Be Passed

Obviously ANY act of domestic violence is not to be condoned, but if Colorado makes the act of strangulation an “automatic” felony with mandatory prison for penalties with little more than the elements of the crime proposed above, the convictions of many innocent people with be the direct result.

“Strangulation” felony laws are founded on the idea that the act of choking – which does not involve a weapon, is a precursor to serious bodily injury or death. The new law lowers the threshold of proof of “real” strangulation. The issue in strangulation cases is the level of proof needed to establish the crime. By lowering the threshold of proof – this new law makes it easier for the innocent to suffer unjust convictions and the consequent mandatory prison sentence.

The problem, for the purpose of charging and prosecuting strangulations cases, is that if choking alone doesn’t result in serious injury, under present Colorado law – (and for good reason)- most Colorado District Attorneys will not file felony charges absent a law that specifically makes it a felony in the absence of serious injury.

BUT if the DA wanted to charge the case as a felony under current Colorado criminal laws – they have that option. The truth is this, many counties in Colorado ALREADY charge choking/strangulation cases as Second Degree Assault by alleging that the hands of the perpetrator are deadly weapons and therefore the case is chargeable as a crime of violence under existing law.

Therefore, again, there is no need for this new law.

Furthermore the new law will require the use of somewhat “questionable” expert testimony that will necessarily be offered at trial tobecause of the missing physical evidence. The typical absence of evidence of the “proof of severity” in strangulation case will therefore be subject to the same weaknesses of other areas of criminal cases which require expert testimony such as bite marks, dog sniffs, and arson patterns.

False Claims of Choking Are Common in Fraudulent Domestic Violence Cases

The new law would make a serious situation of the explosion of false domestic violence allegations even worse than it is today. If the state lightens the burden in this area and contemporaneously increases the penalty to a mandatory prison sentence – many falsely accused people (mostly men) will be arrested, prosecuted and convicted.

Real EVIDENCE is needed to raise a crime to the level of a felony with mandatory prison – and that evidence needs to be strong – see what follows:

Poorly Written Laws Mean Easy Convictions

Here is the new Second Degree Assault – Strangulation – again:

(i) with the intent to cause bodily injury, he or she impedes or restricts the breathing or circulation of the blood of another person by applying pressure to the neck or by blocking the nose or mouth of the other person and thereby causes bodily injury.

The statute does not require any showing of actual physical injury. If physical injury is alleged, then at least the Second Degree Degree Assault statute comes into play.

Because this new form of Second Degree Assault requires no evidence of physical injury, the word of the alleged victim will be enough evidence for a mandatory prison sentence. The new crime also “enhances” the penalty range for the new crime by making it an extraordinary risk crime increasing the maximum (top end) presumptive sentence range.

Because many claims of strangulation are false – the Colorado criminal defense lawyer must understand the nature of actual strangulation.

Defending Against A Colorado Charge Of Assault By Strangulation

The most common defenses to a charge of assault by strangulation are:

The accused acted in self-defense as against an attack by the alleged “victim,”
The incident was an unintentional accident, or
The alleged “victim” has made up false allegations of abuse.
The case cannot be proven beyond a reasonable doubt.

To Attack Allegations Of Strangulation – First Understand Strangulation

What then is Strangulation? (From the Colorado Domestic Violence Bench Book)

Choking vs. Strangulation

Choking: is defined as an internal obstruction of the airway.

Strangulation: is defined as a form of asphyxia characterized by closure of the blood vessels and air passages of the neck as a result of external pressure on the neck.

There Are Three Basic Types of Strangulation

Hangings: Hangings are almost always suicides.

Manual Strangulation:

Manual strangulation is normally accomplished with one or two hands. Forearms and kneeling on a person|s neck are also forms of manual strangulation.There are different ways of manually strangling a person:

One handed front approach

Two handed front approach

Two handed back approach

Larynx with two thumbs

Pressure to neck with elbow or forearm, or other limb

Ligature Strangulation: Ligature strangulation is accomplished with some constricting band that is tightened by force other that body weight. These can include belts, ropes, electrical cords, bedding and clothing.

The Clinical Sequence of Strangulation

The victim will lose consciousness by any one or all of the following:

Blocking of the carotid arteries: Depriving the brain of oxygen.

Blocking of the jugular veins: Preventing deoxygenated blood from leaving the brain

Closing off the airway: Causing the victim to be unable to breathe. The “airway” includes the hyoid bond, thyroid cartilage, and tracheal rings.

Pounds of Pressure needed to cause unconsciousness

Carotid Artery Occlusion:

Most common.

11 lbs. of pressure for 10 seconds.

If pressure is immediately released consciousness is regained in 10-12 seconds

Jugular Vein Occlusion:

Second most common.

4.4 lbs. of pressure to occlude

Tracheal Occlusion:

Third most common.

33 lbs. of pressure to occlude

Symptoms of Strangulation

Objective Symptoms

Respiratory Changes:

Breathing Difficulties

Lung damage

Coughing up Blood (hemoptysis)

Voice Changes (Raspy Voice)

Visible Injuries – Face:

Petechiae can be present throughout the face.

Petechiae are the rupturing of capillaries (the smallest blood vessels in the body).

The “tiny red dots¨ generally occur above the area of constriction.

The more petechiae present, generally, the greater the struggle. This indicates repeated occlusions and release of pressure.

Visible Injuries – Neck:

Internal Injuries to the neck. Generally, medical testimony is usually necessary to detect ininternal injuries:

Internal Bleeding

Laryngeal Fracture

Hyoid Bond Fracture

Thyroid Fracture

Closing off airway

Swelling may occur due to internal bleeding.

Red marks, bruises, scratches, and ligature marks present

Visible Injuries – Eyes:

Subconjuntival Hemorrhages can be present in the eyes themselves. A subconjuntival hemorrhage occurs when the capillaries rupture in the white portion of a victim’s eyes.

Petechiae can be present throughout the face.

Types of Occlusion:

Carotid Artery

Jugular Vein

Airway/Tracheal

Neurological Changes:

Seizures can also occur

Memory loss

Psychosis can be present

Other Injuries can be present from assaultive behavior:

Head contusions.

Injuries on chin

Injuries on the back.

Other “Symptoms:”

Voice Changes.

Difficulty Swallowing V may also be objective if third party is present immediately.

Breathing Difficulties V may also be objective if third person is present immediately.

Mental Status Changes:

Memory loss (amnesia), psychosis.

The Research – The Following Statistics Are Important:

50% of the time – there is NO visible injury.

35% of the time there is only MINOR visible injury.

Only 15% of the time will there be real evidence of injury such as rope burns, red marks or bruising.

What Allegations Of Strangulation In The Context Of Colorado Domestic Violence Really Means To The Accused – The Need For Aggressive Defense Of These Cases

In the absence of physical evidence or eyewitness corroboration documenting an allegation of strangulation, the only evidence the State can muster is the classic “he said – she said” case. Alleged victims claim that they have shortness of breath – or are lightheaded.. both very subjective and assailable under cross examination.

Law enforcement rarely conducts a thorough investigation beyond the initial contact with the victim. There is almost never ANY ATTEMPT to determine if the person accused of domestic violence was actually defending themselves from an attack or if the exchange was a mutual engagement of violence.

Furthermore, little investigation is directed at the psychological stability of the victim, her level of intoxication, or other indications of the basic credibility of her statements.

There is a reason why victim recantation is so common in Colorado domestic violence cases – there was never an assault.

The Consequences Of A Conviction For Domestic Violence

The consequences DV conviction in life cannot be understated – whether the conviction is for a misdemeanor or felony offense.

Long Periods of Probation – DV Classes – Costs of Treatment
Jail or prison time
Background checks that foreclose present or future employment opportunities costing thousands if not tens of thousands of dollars over a lifetime.
Landlords refusing to lease based on background checks.
Loss of licensure in many professions now controlled by the Colorado Department of Regulatory Agencies (DORA)
Possible deportation.
Loss of the right to bear arms under Federal Law.

Colorado Criminal Law Update – Colorado May Upgrade Strangulation To A Felony – Even Without Serious Bodily Injury

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Never stop fighting – never stop believing in yourself and your right to due process of law.

ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at [email protected] – 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 and experience of Colorado Criminal Law gives him the edge you need to properly handle your case.

“A good criminal defense lawyer is someone who devotes themselves to their client’s case from beginning to end, always realizing that this case is the most important thing in that client’s life.”

Over 40 Years Specializing in Colorado Criminal Law You should be careful to make a responsible choice in selecting a Colorado Criminal Defense Lawyer – and we encourage you to “vet” our firm. Over the last 40 plus years – by focusing ONLY on Colorado criminal law – H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, to include Colorado criminal law and procedure and trial and courtroom practice. H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way – Colorado Criminal Law Update – Colorado May Upgrade Strangulation To A Felony – Even Without Serious Bodily Injury.

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Colorado Criminal Law Update - Colorado May Upgrade Strangulation To A Felony - Even Without Serious Bodily Injury

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H. Michael Steinberg