Colorado Revised Statute § 18-3-205 prohibits vehicular assault, which is reckless driving or intoxicated driving that results in serious bodily injury to another person. If the victim dies from the injuries, the state would charge the more serious crime of vehicular homicide.
The key language of 18-3-205 CRS states that:
(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.
The following chart sets out the sentencing ranges for vehicular assault.
| Colorado Crime | Penalties |
| Reckless driving vehicular assault | Class 5 felony: 1 to 3 years in prison and/or $1,000 to $100,000. |
| DUI vehicular assault | Class 4 felony: 2 to 6 years in prison and/or $2,000 to $500,000. |
Our Colorado criminal defense lawyers discuss the following:
- 1. What is vehicular assault?
- 2. What are the penalties?
- 3. How do I fight the charges?
- 4. What are the immigration consequences?
- 5. Related Offenses
- Additional Reading
Violating CRS 18-3-205 is a felony whether the defendant was inebriated or merely reckless.
1. What is vehicular assault?
For you to be convicted of vehicular assault under CRS 18-3-205, Colorado prosecutors must prove beyond a reasonable doubt these elements of the crime:
- You drove recklessly OR under the influence of alcohol and/or drugs, and
- The driving was the proximate cause of serious bodily injury to another person.
CRS 18-3-205 is a strict liability crime. This means it does not matter whether you intend to hurt someone. The only question is whether you caused serious injury by driving recklessly or while under the influence of alcohol and/or drugs.1
What is a serious bodily injury?
“Serious bodily injury” under Colorado law means an 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, or
- Breaks, fractures, or burns of the second or third degree.2
What is proximate cause?
You are the proximate cause of someone’s injury if the injury is a natural and probable consequence of your misconduct.
Example: Alice decides to drive home from a party, even though she has been drinking. Her BAC is, in fact, 0.10%, well over Colorado’s “legal limit” of 0.08%. On her way home, Alice hits a child on a bicycle and breaks several bones in his face. Because Alice voluntarily drove a motor vehicle while under the influence, her driving was the proximate cause of the child’s serious injuries, and she can be charged with violating CRS 18-3-205.
However, Alice would not be legally responsible for the child’s injuries if:
- They resulted from an intervening event that was completely independent of the accident,
- The intervening event was unforeseeable,
- Alice did not participate in the intervening event, and
- But for intervening event, the child would not have sustained the serious injuries.
Example: Let us say that in the prior example the accident just bruised the child’s arm in one place. A simple bruise is not a serious enough injury to merit CRS 18-3-205 charges. But while the child is being looked at in the emergency room for medical treatment, a former employee comes into the hospital with a gun and starts shooting people. The child is shot in the face, leaving him disfigured. Although the accident started the whole thing, the shooting was unforeseeable and Alice had nothing to do with it. If not for the shooting, the child would have fully recovered. So the shooting — not the accident — that was the proximate cause of the child’s serious injuries.
What constitutes reckless driving?
You drive in a reckless manner when you consciously disregard the safety of others. An example may be speeding through red lights or swerving between lanes. Recklessness requires a higher degree of culpability than mere negligence.3
What is “driving under the influence (DUI)”?
You drive under the influence in Colorado when:
- You drive after using alcohol and/or drugs, and
- As a result of the alcohol and/or drugs, you are substantially incapable, mentally and/or physically, of exercising clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.
Proof of impaired driving in a CRS 18-3-205 case usually comes from:
- Your blood alcohol content (BAC),
- Your statements,
- Your driving,
- Witness accounts of the accident,
- Reconstruction of your activities before you got in the car, and
- The presence of alcohol, drugs and/or drug paraphernalia in your car.
Juries in vehicular assault trials may presume you drove under the influence if:
- Your blood alcohol concentration (BAC) was 0.08% or higher (DUI per se), or
- Your blood contained five nanograms or more per milliliter of delta 9-tetrahydrocannabinol (THC), the main psychoactive ingredient in marijuana.4
What about legal or prescription drugs?
If a drug or other substance makes you drive unsafely, you are driving under the influence. It does not matter whether the drug is legal or medically necessary. Even innocuous drugs can lead to DUI charges. These include not only alcohol and controlled substances, but seemingly innocent and commonly used drugs such as:
- Allergy medications,
- Cold medicines,
- Over-the-counter pain medications,
- Inhaled vapors, and
- Medical marijuana.
Do I have to take a DUI test?
By driving in Colorado, you are deemed to give “express consent” to a chemical BAC test if you are arrested on suspicion of DUI. Normally, you must be given the choice of a DUI breath test or DUI blood test.
However, if the arresting officer reasonably suspects that drugs were involved, you can be required to take a blood, urine or saliva test instead of — or in addition to — a breath test.
Refusing to take a chemical test will get your driver’s license automatically suspended for one year. This is obviously not as serious as prison. So you might decide it is in your best interest to refuse to take a chemical test if you caused a serious accident after drinking or using drugs.
However, your refusal will be admissible as evidence of guilt should the case go to trial.9 The only way to fight a DUI test refusal is to show that the officer had no probable cause to require one in the first place. This can be difficult when someone was injured by your driving.5
Can my blood be taken against my will?
If the officer suspects that you were DUI, your blood can be taken against your will. The results of an involuntary blood test can be used against you.
A common defense in vehicular assault cases is that the defendant was not at fault.
2. What are the penalties?
What are the penalties for reckless vehicular assault?
Seriously injuring someone as a result of driving recklessly in Colorado is a class 5 felony. Consequences can include:
- A prison sentence of 1 to 3 years (with mandatory 2-year parole), and/or
- A fine of $1,000 to $100,000.
What are the penalties for DUI vehicular assault?
It is a class 4 felony if you seriously injure someone while driving under the influence. Consequences can include:
- 2 to 6 years in a Colorado prison (with mandatory 3-year parole), and/or
- A fine of $2,000 to $500,000.6
If you are granted probation, the judge may order 90 days of continuous alcohol monitoring.
3. How do I fight the charges?
The best defenses to Colorado criminal charges under CRS 18-3-205 depend on:
- Whether the charge is for reckless driving or DUI,
- How severely the alleged victim is injured, and
- The facts of the case.
However, common defenses in these criminal cases often include (without limitation):
- The car accident was not your fault.
- You did not drive (the “no driving” defense).
- You were not driving recklessly.
- You did not drive under the influence.
- The DUI breath test or DUI blood test was not conducted in accordance with Colorado regulations.
- The results of the DUI chemical test were not reliable.
- The witness accounts were inconsistent.
- The alleged victim was not seriously injured.
- The officer did not properly advise you of your rights.
- There was serious police misconduct, or the district attorney committed misconduct.
4. What are the immigration consequences?
It is unclear whether a CRS 18-3-205 violation affects a non-citizen’s resident status. Even though you may have had no criminal intent, prosecutors may still try to argue that vehicular assault qualifies as a crime involving moral turpitude or an aggravated felony – which are deportable.7
If you are a non-citizen charged with any crime, seek an experienced criminal defense attorney right away. It may be possible to get the case dismissed or substantially reduced to a non-deportable offense.
5. Related Offenses
Vehicular Homicide
Vehicular homicide (CRS 18-3-106) is driving a motor vehicle in a reckless way or while drunk or high, and then causing a fatal accident. This a felony that can lead to up to 12 years in prison.
Hit and Run
Fleeing the scene of an accident (CRS 42-4-1601) is a misdemeanor if only property damage occurs. If it causes serious injury or death, it is charged as a felony.
Careless Driving
Careless driving (CRS 42-4-1402) is operating a vehicle while lacking proper regard for the road and surroundings. It is usually a class 2 misdemeanor traffic offense.8
Additional Reading
For more in-depth information, refer to these scholarly articles:
- Deportation and Driving: Felony DUI and Reckless Driving as Crimes of Violence following Leocal v. Ashcroft – Journal of Crime & Criminology.
- Criminal Law: Reckless Driving Is Not a Lesser Included Offense of Driving While under the Influence of Alcohol – Washburn Law Journal.
- Reckless and Careless Driving: Is There a Difference? – The Journal of Criminal Law.
- Sociodemographic, behavioral, and substance use correlates of reckless driving in the United States: Findings from a national Sample – Journal of Psychiatric Research.
- Death on the Highway: Reckless Driving as Murder – Oregon Law Review.
Learn more about Colorado DUI laws. Also see our article, Does Colorado have a felony DUI statute?
Legal references:
- CRS 18-3-205. The full text of the code section reads:
(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 means any drug, as defined in section 27-80-203(13), C.R.S ., any controlled substance, as defined in section 18-18-102(5), and any inhaled glue, aerosol, or 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, gives rise to the following:
(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, such fact gives rise to the permissible inference that the defendant was under the influence of alcohol.
(d) If at such time the driver’s blood contained five nanograms or more of delta 9-tetrahydrocannabinol per milliliter in whole blood, as shown by analysis of the defendant’s blood, such fact gives rise to a permissible inference that the defendant was under the influence of one or more drugs.
(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, the person, upon the request of the law enforcement officer, shall take, and complete, and cooperate in the completing of any test or tests of the 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 the person refuses to take, or to complete, or to cooperate in the completing of any test or tests, the test or tests may be performed at the direction of a law enforcement officer having probable cause, without the 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), the person shall be subject to license revocation pursuant to the provisions of section 42-2-126(3), C.R.S. When the 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(3)(a), (3)(b), (3)(d), or (3)(e), C.R.S., the 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 service provider 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 is entitled to withdraw blood to determine the alcoholic or drug content of the blood for purposes of this section. In a trial for a violation of paragraph (b) of subsection (1) of this section, testimony of a law enforcement officer that the officer witnessed the taking of a blood specimen by a person who the officer reasonably believed was authorized to withdraw blood specimens is sufficient evidence that the person was authorized, and testimony from the person who obtained the blood specimens concerning the person’s authorization to obtain blood specimens is not a prerequisite to the admissibility of test results concerning the blood specimens obtained. No civil liability shall attach to a person authorized to obtain blood, breath, saliva, or urine specimens or to a hospital, clinic, or association in or for which the specimens are obtained in accordance with this subsection (4) as a result of the act of obtaining the specimens from any person if the specimens were obtained according to the rules prescribed by the state board of health; except that the provision does not relieve the person from liability for negligence in obtaining the 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 42-4-1301.1, 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.
See also CRS 18-1-901(3) (p); See People v. Childress, (2015) 363 P.3d 155.
- See, for example, People v. Garner, (1989) 781 P.2d 87 89 (discussing vehicular homicide, a similar strict liability offense).
- CRS 18-3-106; CRS 42-4-1401.
- CRS 18-3-205(2)(c); CRS 18-3-205 (2)(d).
- CRS 18-3-205 (4)(f).
- CRS 18-3-205.
- See 22 CFR § 40.21; 8 U.S. Code § 1101.
- See People v. Zweygardt, (2012) 298 P.3d 1018.