In my last post, The Issue of Mandatory Prison for Second Degree Assault – Part III, I described a problem with the term “serious bodily injury” as it relates to the issue of mandatory sentencing in Second Degree Assault cases.
Imagine that you’re in a situation where you feel compelled to resist arrest. In the middle of the scuffle, the arresting officer trips and breaks his nose. Given the current law, it would not be difficult for a prosecutor to classify this “serious bodily injury” and use this classification of serious bodily injury to charge Second Degree Assault with its mandatory prison ramifications. This would be true even though your conduct was not egregious.
What is “Serious Bodily Injury?”
Here is how the phrase “serious bodily injury” is currently defined in the State of Colorado (paraphrased):
“Bodily injury, which either at the time of the actual injury or at a later time, involves a substantial risk of death, protracted loss or impairment or the function of any part of the body or breaks, fractures or burns of the 2nd degree.”
Getting your hand chopped off is serious. Being on life support or being in a coma is serious. A law enforcement officer who breaks his hand while hitting my client’s face is not looking at a lifetime of significant impairment.
The room for interpretation within the phrase “Serious Bodily Injury” is concerning. It could be argued in court that a small fracture or scrape might be considered serious if it requires a visit to the doctor’s office. To me, the phrase demands a more literal approach. Serious means serious: you should look at the true nature of the injury and not some generalization.
When a bodily injury truly affects your life, it is serious. But the phrase simply leaves too much room for interpretation for comfort.
The New Law
Yes, the proposed amendments to the statute will make it more difficult for the prosecution to misuse the statute by attempting to coerce a defendant to accept an unfavorable offer by threatening mandatory prison. However, there are still considerable problems. I suspect that the proponents of the amended statute are concerned that if they attempt to change the statute too much, the amendments may fail. Therefore, they’re moving a step at a time.
While the statute, if the current amendments pass, would be better, I believe that the definition of ”serious bodily injury” has to be addressed or the prosecution will continue to attempt to coerce defendants into accepting offers because of the fear of mandatory prison if they proceed to trial and lose.
We at The Law Offices of Barre Sakol believe it is important that our prisons aren’t filled with people who just happened to be in the wrong place at the wrong time.
If you are facing Second Degree Assault charges and need legal counsel, call our office at (720) 999-9506 to set up a free consultation.