Your Guide to Colorado Vehicular Homicide and Vehicular Assault

Accidents, especially involving vehicles, happen. It’s a part of the risk everyone accepts when they get behind the wheel. But when someone in a vehicle strikes and harms another, or kills them, then it’s more than just a simple accident in the eyes of the law.

In certain situations, injuring or killing another person in an accident may be a crime. In Colorado, vehicular assault or vehicular homicide may come into play.

Below, we’ll cover what you need to know about these two offenses, including how they are defined under the law and the potential penalties one may face if found guilty.

First, though, there are some terms you need to know.

What Is a “Motor Vehicle” in Colorado?

What is a motor vehicle? It may seem like a simple question, but under the law, the definition may be different than you would think.

According to Colorado statute, a motor vehicle is:

“…any self-propelled vehicle that is designed primarily for travel on the public highways and that is generally and commonly used to transport persons and property over the public highways or a low-speed electric vehicle; except that the term does not include electrical assisted bicycles, low-power scooters, wheelchairs, or vehicles moved solely by human power. For the purposes of the offenses described in sections 42-2-128, 42-4-1301, 42-4-1301.1, and 42-4-1401 for farm tractors and off-highway vehicles, as defined in section 33-14.5-101(3), operated on streets and highways, “motor vehicle” includes a farm tractor or an off-highway vehicle that is not otherwise classified as a motor vehicle. For the purposes of sections 42-2-127, 42-2-127.7, 42-2-128, 42-2-138, 42-2-206, 42-4-1301, and 42-4-1301.1, ‘motor vehicle’ includes a low-power scooter.”

As you can see, that’s way more than just the automobile most people use to travel to and from work or school.

What Is “Serious Bodily Injury” in Colorado?

One of the major factors in whether someone can be charged with vehicular assault is if “serious bodily injury” occurred. Naturally, this is something that is defined by the state, too.

Under the law in Colorado, serious bodily injury refers to an injury that, either at the time it occurred or later on, causes a substantial risk of death or serious permanent disfigurement.

What Is “Serious Bodily Injury” in Colorado?

If a person is at risk of impairment or protracted loss of function of any part of their body or organ due to the injury or they are experiencing second or third-degree burns or fractures, then it is considered serious bodily injury.

Vehicular Assault: What Is It in Colorado?

In the state of Colorado, vehicular assault is committed if two circumstances are met in the incident:

  • the driver was driving recklessly or while under the influence of drugs or alcohol, and
  • the act of driving is what caused the serious injury to the other party to occur.

Vehicular assault is considered a strict liability crime in Colorado.

What does that mean? That it doesn’t matter whether or not the person driving the vehicle intended to hurt someone. The only question the court wants to be answered is if the injury was caused by reckless or impaired driving.

If the answer is yes, then it is legally defined as vehicular assault.

Reckless Driving in Colorado

Another major factor in charging someone with vehicular assault is the determination that their driving was reckless. Under the law, reckless driving occurs if someone drives in a way that consciously neglects the safety of other people.

Another term that is often used interchangeably with reckless driving is aggressive driving. The NHTSA defines aggressive driving as when “an individual commits a combination of moving traffic offenses so as to endanger other persons or property,” and it is something that has been found to contribute to road rage.

How common is aggressive driving? Thankfully, Colorado is not one of the worst states for this type of behavior, but we certainly are not immune. Across the U.S., aggressive driving behaviors are incredibly common:

Vehicular Assault: What Is It in Colorado?

Likelihood of Aggressive Driving Among U.S. Drivers Source: AAA 2019

Any of these behaviors could potentially result in a vehicular assault or homicide charge if you are involved in an auto incident where someone is seriously injured or killed.

Driving Under the Influence

Another way that vehicular assault can be alleged is if someone was operating a vehicle under the influence of drugs or alcohol. In Colorado, a person is considered under the influence if they drive after using drugs or alcohol and, because of that, are incapable of exercising clear judgment, due care in operating the vehicle, or sufficient physical control. Impaired driving plays a role in many instances of vehicular assault and homicide.

To establish whether or not a driver was impaired, the court will consider the results of blood alcohol tests taken as well as other observations and evidence from law enforcement officers — including any statements made by the driver. How the car was being driven, witness testimony and the presence of drugs, drug paraphernalia, or alcohol in the vehicle can all be used to help determine whether or not a driver was impaired.

Some people may be under the influence of legal or prescription medication at the time of the accident. If they are and an accident occurs, it doesn’t matter in the eyes of the law whether or not the drugs were prescribed or if they are legal.

Driving Under the Influence in Denver

If a person is legally too impaired to operate a vehicle, that is considered driving under the influence. Period.

Penalties for Vehicular Assault

If an accident occurs and a person is seriously injured, then the driver may be accused of vehicular assault. If found guilty of reckless vehicular assault, they face several serious consequences, such as up to three years in prison and fines of as much as $100,000.

If the driver is convicted of vehicular assault due to being under the influence, then it’s considered a Class 4 felony. That can lead to up to six years in prison and fines of as much as $500,000.

Vehicular Homicide in Colorado

In Colorado, vehicular homicide occurs when someone operates a vehicle recklessly or while under the influence of drugs or alcohol and the driving that occurred due to those factors caused the death of another person.

Vehicular Homicide in Colorado

Driving is considered reckless under vehicular homicide laws in much the same way that it is for vehicular assault. Basically, if you consciously disregard the risk created by reckless driving, then you can be found guilty of vehicular homicide.

However, if a person simply doesn’t understand the risk they are creating with their driving, they may ultimately not be charged or found guilty of vehicular homicide. Instead, they could find themselves facing criminally negligent homicide.

To be convicted of vehicular homicide, a person must understand the dangerous circumstances they are creating and do it anyway.

In Colorado, Proximate Cause Plays a Role, Too

When it comes to the death of another person, it must be determined that someone was the proximate cause of another’s death in order for vehicular homicide to be charged. Someone is the proximate cause of the death of another when the death is a consequence of misconduct.

Denver Vehicular Homicide Defense Lawyer

So, for example, if you were driving recklessly and hit someone who was then severely injured and died from their injuries, then you are the proximate cause of their death – even if they didn’t die right away.

However, if the person’s death is caused by an intervening event that isn’t directly related to the accident, then you may not be held legally responsible if some circumstances line up:

  • the event that caused their death must be independent of the accident
  • the event couldn’t have been foreseen
  • you were not a participant in the intervening event
  • the person wouldn’t have died unless the intervening event occurred

If these things hold true, then you may not be legally liable.

Here is an example of an intervening event that would make you not responsible for the death of another: you strike a person with your car and their leg is broken. When they are treated at the hospital, they contract an infection that is the eventual cause of their death.

Denver Vehicular Homicide Defense

The infection is what killed the person, not the broken leg caused by the accident, so it is not legally considered vehicular homicide – even though it can still be considered vehicular assault.

Driving Under the Influence in Vehicular Homicide Cases

Driving under the influence is defined the same way in vehicular homicide cases as it is in vehicular assault. If you operate a vehicle when under the influence of drugs or alcohol and it makes you incapable of safely operating the vehicle or exercising good judgment, then you are considered under the influence.

Vehicular Homicide Penalties in Colorado

There are two types of vehicular homicide you can be accused of:

  • Reckless vehicular homicide
  • Driving while under the influence vehicular homicide

Each comes with specific penalties.

Reckless Vehicular Homicide

If you are found guilty of this crime, then it is a Class 4 felony that can result in up to six years in prison and as much as $500,000 in fines.

Driving Under the Influence Vehicular Homicide

This is considered a Class 3 felony in Colorado. It can result in as many as 12 years in prison and fines of as much as $750,000.

Driving Under the Influence Vehicular Homicide

Defenses for Vehicular Assault and Vehicular Homicide

No matter the circumstances, everyone is entitled to robustly defend themselves in court against vehicular assault or vehicular homicide allegations.

An experienced attorney can help you to formulate a defense based on the circumstances of your particular case. However, there are some common defenses used against these crimes that you should be aware of.

Defenses for Colorado Vehicular Assault and Vehicular Homicide

How your defense strategy will be designed depends on what specific charges you are fighting against – a DUI or reckless driving charge. Many defenses for these two crimes are similar, though there are unique differences for some.

Also, how severely the victim was injured plays a role.

Some of the most common defenses for vehicular assault and vehicular homicide include:

  • You weren’t driving – If you didn’t drive the car involved in the accident, then you cannot be guilty of vehicular homicide. For this defense to work you must be able to create doubt that you were the driver. However, the burden of proof falls on the prosecution to show that you were the one in control of the vehicle at the time the accident occurred.

Defenses for Colorado Vehicular Assault and Vehicular Homicide

  • Statements given by witnesses are not consistent — Inconsistent statements can call into question all kinds of evidence that is being used against you and raise doubts about your guilt.
  • You weren’t driving recklessly – Again, it’s up to the prosecution to show that you were driving in a reckless way that caused the accident that led to the death or injury of another.
  • The accident was not your fault. If you can provide evidence making the argument that you did not cause the accident that led to the victim’s injury or death, it can go a long way towards helping your case.
  • You were not under the influence – In vehicular homicide cases in particular, there is no “legal limit” involved. If you were drinking or using drugs in any capacity and an accident occurred that led to the death of another, then you can be charged with DUI vehicular homicide. The prosecution must, however, show that you were unable to safely operate the vehicle. For vehicular assault, it may help your case if you can show that your DUI test was not administered legally or in accordance with regulations in Colorado.
  • You were not advised of your rights – Even under the direst circumstances, there are certain rights that everyone is entitled to under the Constitution of the United States. If you were not advised of your rights before submitting to any tests by police or being arrested, then that isn’t legal and can make any evidence against you collected inadmissible in court.
  • Your rights were violated – Again, you have rights and it’s the job of law enforcement to ensure those rights are upheld in any circumstance. Failure to do so through coercion, intimidation, or illegal searches can be used against the prosecution to weaken their case.
  • Police or district attorney misconduct — Related to the above, if law enforcement misconduct played a role in your case, it can call into question their entire argument against you.

Denver Criminal Defense Attorney

One additional defense that those accused of vehicular assault may use is that the injury to the victim does not rise to the standard of serious bodily injury.

Something else important to note: for some charges, the victim may be found at fault partially for what happens in an accident. This is called contributory negligence. However, this does not apply to vehicular assault or vehicular homicide cases in Colorado.

Denver Criminal Lawyer

No matter the part played by the victim, it can not be used as a defense in the case unless it is considered an intervening cause. Nuances like these are why you need an experienced attorney on your side to help you understand the ins and outs of the law and what defense can work best for your case.


About the Author:

Denver-based criminal defense and DUI attorney Jacob E. Martinez is a knowledgeable and experienced litigator with a record of success providing innovative solutions to clients facing criminal charges of any severity. Mr. Martinez has been recognized by countless legal organizations for his exemplary defense work, including Avvo, Best DWI Attorneys, Expertise, Lawyers of Distinction, The National Trial Lawyers, and others. He was also named one of the 10 Best in Client Satisfaction in Colorado by the American Institute of Criminal Law Attorneys for 2020, and is Lead Counsel rated.