Colorado Law Distinguishes Resisting Arrest 18-8-103 and Second (2d) Degree Assault On A Police Officer 18-3-203
By H. Michael Steinberg Colorado Drug Crimes Criminal Defense Lawyer – Email the Author at [email protected]
Colorado Law Distinguishes Resisting Arrest 18-8-103 and Second (2d) Degree Assault On A Police Officer 18-3-203 – At the time of the execution of a Colorado search or arrest warrant in a drug crime investigation – it is common for the police to “goad” the person being arrested or the owners of a car or a home to “resist” the police. If an assault takes place – this escalation can lead to a charge of the much more serious crime – requiring a 5 year mandatory prison sentence – second degree assault.
The Escalation Of Resisting Arrest 18-8-103 To Second (2d) Degree Assault On A Police Officer 18-3-203
This article is intended to assist you in understanding the classic fact pattern that follows contact with a police officer that begins with resisting arrest and can end in the charge of second degree assault.
Typically the police will contact you at your house to investigate a complaint, to serve and execute a search warrant to make an arrest with or without a warrant. The action of the police leads to an argument and the handcuffs come out.
During the arrest – there is a physical altercation with the officer and charges of resisting arrest and second degree assault are thereafter filed.
Before you can be convicted of BOTH of these crimes – there must be evidence that you used or threatened the use of physical force or violence before AND after you are arrested.
Resisting arrest is charged in Colorado when a person uses violence against a peace officer up to the point of arrest. AFTER the arrest is completed, the use of violence can lead to the more serious charge of second degree assault. Arrest occurs WHEN “in view of all the circumstances, a reasonable person would believe that he or she is not free to leave.” It is at that point that the person’s resistance is no longer “resisting arrest.”
If there is POST-arrest violence against a peace officer – the charge is second-degree assault. 18-3-203
These Colorado crimes – resisting arrest and second-degree assault – are distinct and mutually exclusive — “whether the defendant’s use of force precedes or follows the effectuation of the arrest dictates the nature of the offense.”
Here Is The Legal Definition of Resisting Arrest (18-8-103) In Colorado
1.A person commits resisting arrest if he knowingly prevents or attempts to prevent a peace officer, acting under color of his official authority, from effecting an arrest of the actor or another, by:
(a) Using or threatening to use physical force or violence against the peace officer or another; or
(b) Using any other means which creates a substantial risk of causing bodily injury to the peace officer or another.
2. It is no defense to a prosecution under this section that the peace officer was attempting to make an arrest which in fact was unlawful, if he was acting under color of his official authority, and in attempting to make the arrest he was not resorting to unreasonable or excessive force giving rise to the right of self-defense.
A peace officer acts “under color of his official authority” when, in the regular course of assigned duties, he is called upon to make, and does make, a judgment in good faith based upon surrounding facts and circumstances that an arrest should be made by him.
3.The term “peace officer” as used in this section and section 18-8-104 means a peace officer in uniform or, if out of uniform, one who has identified himself by exhibiting his credentials as such peace officer to the person whose arrest is attempted.
4.Resisting arrest is a class 2 misdemeanor
Here Is A Brief Summary of the Colorado Crime of Second Degree Assault 18-3-203
A person commits the crime of Second Degree Assault in Colorado If he or she:
1. Intentionally cause bodily injury to someone with a deadly weapon
2. Recklessly cause serious bodily injury by means of a deadly weapon
3. Caused bodily injury to any person while attempting to keep a firefighter or police officer from performing their legal function.
4.While intending to cause bodily injury, serious bodily injury results from your actions.
In Colorado Second Degree Assault is much more serious than a class 2 Misdemeanor (up to a year in county jail). It is a Class 4 felony, and is a Crime of Violence category requiring a minimum mandatory sentence of at least five years in prison, and a possible fine up to $500,000.
What About The Colorado Crime of Obstruction or Obstructing a Colorado Peace/Police Officer Under 18-8-104?
This crime is what I call a kitchen sink crime. It is charged very often when you anger a Colorado police officer during the investigation of a case. The police often have a very exaggerated view of their actual authority. They believe they can enter your home or property whenever they want. They believe they can stop you from videoing or photographing their acts – and in any way criticizing them in the performance of their duties.
The stress that occurs in the execution of an arrest of a friend and or family member is inherently dangerous to all involved so it is important to know your rights at that critical moment.
Here Is The Colorado Crime of Obstructing a peace officer, firefighter, emergency medical services provider, rescue specialist, or volunteer. 18-18-104
(1) (a) A person commits obstructing a peace officer, firefighter, emergency medical services provider, rescue specialist, or volunteer when, by using or threatening to use violence, force, physical interference, or an obstacle, such person knowingly obstructs, impairs, or hinders the enforcement of the penal law or the preservation of the peace by a peace officer, acting under color of his or her official authority; knowingly obstructs, impairs, or hinders the prevention, control, or abatement of fire by a firefighter, acting under color of his or her official authority; knowingly obstructs, impairs, or hinders the administration of medical treatment or emergency assistance by an emergency medical service provider or rescue specialist, acting under color of his or her official authority; or knowingly obstructs, impairs, or hinders the administration of emergency care or emergency assistance by a volunteer, acting in good faith to render such care or assistance without compensation at the place of an emergency or accident.
(b) To assure that animals used in law enforcement or fire prevention activities are protected from harm, a person commits obstructing a peace officer or firefighter when, by using or threatening to use violence, force, physical interference, or an obstacle, he or she knowingly obstructs, impairs, or hinders any such animal.
(2) It is no defense to a prosecution under this section that the peace officer was acting in an illegal manner, if he was acting under color of his official authority as defined in section 18-8-103 (2).
….
(4) Obstructing a peace officer, firefighter, emergency medical service provider, rescue specialist, or volunteer is a class 2 misdemeanor.
(5) For purposes of this section, unless the context otherwise requires:
(a) “Emergency medical service provider” means a member of a public or private emergency medical service agency, whether that person is a volunteer or receives compensation for services rendered as such emergency medical service provider.
(b) “Rescue specialist” means a member of a public or private rescue agency
Obstruction/obstructing is a Class 2 misdemeanor in Colorado. The possible sentence – like resisting arrest – is three to 12 months in a Colorado county jail.
How Does The Colorado Crime of Obstruction – Obstructing Police Fit It? -18-8-104
You can charged with resisting or obstructing a Colorado police officer without actually using physical force? Any form of “resistance” or “obstruction ” of a police officer who is on the job can be enough – be careful!
These cases are fact specific – the simplest case is the actual application of physical force or violence – but it is still possible to be charged with resisting or obstructing a police officer by somehow getting in the way during the execution of an official act.
- Never question an officer’s authority at the scene – retain a lawyer to do that later.
- Never give an officer false information during an investigation – rather exercise your constitutional right to remain silent.
- And Never enlist others to interfere in the execution of the official duties of the police.
Colorado Courts have repeatedly held that the legislative purpose behind the Obstructing a Police Officer statute is to permit the police to carry out their functions unobstructed by Colorado citizens. Therefore the “reach” of this law includes just the use of spoken words as they can be as effective as actual physical violence in impeding a police officer.
Colorado Law Distinguishes Resisting Arrest 18-8-103 and Second (2d) Degree Assault On A Police Officer 18-3-203
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ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at [email protected] – A Denver Colorado Drug Crimes 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.
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