§ 18-2-101 CRS – Criminal Attempt – Colorado Law & Penalty

§ 18-2-101 CRS is the Colorado statute that defines criminal attempt. This is when you have a requisite intent to commit a crime and take a substantial step towards committing it but fail to complete the criminal act.

In most cases, the penalty for a criminal attempt is reduced by one classification level compared to the penalty for the completed crime.

To help you better understand criminal attempt sentencing, our Denver Colorado criminal defense lawyers will discuss:

• 1. What is a substantial step?
• 2. Punishment
• 3. Defense Strategies
• Additional Reading

In Colorado, if you try to commit a crime, but fail, you are guilty of criminal attempt.

1. What is a substantial step?

For you to be guilty of criminal intent in Colorado, you not only have to intend to commit the underlying offense. You also must take a substantial step towards accomplishing it. Under Colorado Revised Statute 18-2-101(1), a “substantial step” is:

“any conduct, whether act, omission, or possession, which is strongly corroborative of the firmness of [your] purpose to complete the commission of the offense.”

So if you intended to commit arson for insurance fraud, a substantial step would be purchasing lighter fluid and filling out an insurance claim in anticipation of setting your property on fire.

Accomplice Liability

Note that even if you were just an accomplice – and someone else was set to physically commit the crime – you can still be convicted of attempt. What is important is that you intended for the crime to happen.

Crimes of Violence

If the crime that was attempted was a crime of violence, then the attempt is also considered a violent crime. Crimes of violence carry enhanced penalties in Colorado.¹

2. Punishment

Attempted Drug Crimes

In Colorado, criminal attempt to commit a level 1 drug misdemeanor or level 2 drug misdemeanor is generally a level 2 drug misdemeanor.

Except as otherwise provided by law:

• criminal attempt to commit a level 1 drug felony is a level 2 drug felony;
• criminal attempt to commit a level 2 drug felony is a level 3 drug felony;
• criminal attempt to commit a level 3 drug felony is a level 4 drug felony; and
• criminal attempt to commit a level 4 drug felony is a level 4 drug felony.²

For more information on specific drug felony sentencing, please see our articles on specific felony drug crimes.

Attempted Petty Offense

Attempt to commit a petty offense in Colorado is punished the same way as if the crime had been successful.³ Consequences can include:

• A fine of up to $300 and/or
• 10 days in jail.⁴

Attempted Misdemeanor

Criminal attempt to commit a class 1 misdemeanor or a class 2 misdemeanor is a class 2 misdemeanor in Colorado.⁵ The base penalty for a class 2 misdemeanor is:

• 120 days in jail and/or
• A fine of $750.⁶

Attempted Felony

Criminal attempt to commit a Colorado felony lowers the base class of the crime by one.⁷ In other words:

• criminal attempt to commit a class 1 felony is a class 2 felony, which carries 8 to 24 years in prison and/or $5,000 to $1 million;
• criminal attempt to commit a class 2 felony is a class 3 felony, which carries 4 to 12 years in prison and $3,000 to $750,000;
• criminal attempt to commit a class 3 felony is a class 4 felony, which carries 2 to 6 years in prison and/or $2,000 to $500,000;
• criminal attempt to commit a class 4 felony is a class 5 felony, which carries 1 to 3 years in prison and/or $1,000 to $100,000; and
• criminal attempt to commit a class 5 felony is a class 6 felony, which carries 1 year to 18 months in prison and/or $1,000 to $100,000.

Criminal attempt to commit a class 6 felony or a felony for which no penalty is specifically provided is a class 6 felony, which carries 1 year to 18 months in prison and/or $1,000 to $100,000.

For more information on felony sentencing, please see our articles on specific crimes, such as attempted murder.

Attempt to Escape Confinement

Attempt to escape custody in Colorado is punished the same way whether or not you succeed.⁸ Attempted escape can be charged as a petty offense, a misdemeanor or a felony, depending on what you were in jail or prison for.

3. Defense Strategies

If you have been charged with criminal attempt in Colorado, one strategy we take is to try to disprove key elements of the underlying crime you were accused of. This could involve arguing that:

• you were acting in self-defense,
• the incident was an accident,
• you were insane,
• you lacked criminal intent, or
• you were falsely accused, etc.

In addition to these general defenses, there are two “affirmative defenses” that apply uniquely to criminal attempt charges:

1. Abandonment: You voluntarily and completely abandoned your efforts to commit the crime. To win on this defense, we must demonstrate that you withdrew from the criminal plan before completing the crime and without being influenced by outside forces, such as fear of getting caught. It must be a true, voluntary change of heart, not just a reaction to unforeseen complications or obstacles.
2. Prevention of the Crime: You took active steps to prevent the crime from happening. This goes beyond abandonment and requires us to show that, after you decided to abandon the crime, you also did something to make sure it could not be carried out by you or anyone else involved.

When raising an “affirmative defense” like these, the burden shifts to you as the defendant to prove that the defense applies. Specifically, you must demonstrate that your abandonment or prevention of the crime was done under circumstances that clearly show a complete and voluntary renunciation of your criminal intent.

Typical evidence we rely on to show that you abandoned and/or prevented the crime includes:

• your recorded communications (such as texts and voicemails) showing your intentions,
• video surveillance footage of your actions, and/or
• eyewitness accounts of your actions.

Note that it is not a defense that the offense would have been impossible to commit had the circumstances been as you believed them to be.

Additional Reading

For more in-depth information, refer to the following scholarly articles:

• Trying, Intending, and Attempted Crimes – Article in Philosophical Concepts.
• Criminal Attempts at Common Law – Article in University of Pennsylvania Law Review.
• Criminal Attempts – The Rise and Fall of an Abstraction – Article in the Yale Law Journal.
• Criminal Attempts – Article in the Harvard Law Review.
• Criminal Attempts – Article in the Dickinson Law Review.

Legal references: