A common issue that people charged with assault in Colorado face is a legal concept called “serious bodily injury” or “SBI” as it is frequently known. When serious bodily injury is attached to a charge, the stakes for defendants are greatly raised. Defendants will face serious felony accusations and the possibility of longer incarceration time. For example, a defendant who injures a person in an assault and inflicts simple “bodily injury” may face charges of second or third degree assault. However, if the injury is determined to be SBI, the accused could be charged with first degree assault and face as much as 10 to 32 years imprisonment.[i]
Serious bodily injury is defined in Colorado law under § 18-1-901(3)(p), C.R.S. and “means bodily injury that, 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, a penetrating knife or penetrating gunshot wound, or burns of the second or third degree.” Examples of serious bodily injury include broken bones, bleeding on the brain, penetrating wounds (like gunshots or stab wounds) that damage organs within the body, and serious burns (such as second or third degree) that could permanently scar the skin.
A determination of whether an injury suffered by an assault victim constitutes a serious bodily injury will almost always be made by a medical professional (such as a treating doctor or a physician’s assistant).[ii] The process used to determine whether a crime victim has a serious bodily injury is as follows: the investigating police will provide the treating physician or medical professional with a form asking whether the victim suffered SBI; whether the patient had or has a substantial risk of death, serious permanent disfigurement, protracted loss of impairment or function, etc.; and the form has a space where the treating medical professional can explain in greater detail how the injury or injuries constitute serious bodily injury.
The details of this form are very important. For example, in People v. Vigil[iii], the victim was stabbed in the neck; however, the knife missed all major organs and blood vessels. The treating physician indicated to police that the victim suffered an injury that had “a substantial risk of death.” The defendant was charged with first degree assault, which has serious bodily injury built into the actual elements of the crime.[iv] The defendant challenged this charge and the Colorado Supreme Court held that first degree assault was not applicable in that specific case. Because the actual injury the victim suffered controlled the analysis and not the risk of harm to the victim, there was no serious bodily injury because no vital organs were struck and there was no substantial risk of death.
What should be obvious to the reader is that determining whether an injury constitutes serious bodily injury is heavily reliant on expert medical testimony. Fighting this determination at trial is accomplished by one of two ways: skilled cross examination of the medical provider who made the SBI determination, and/or using a defense expert witness to contradict the other provider’s findings. Either situation involves competent legal skill. Effective cross examination is the product of years of courtroom experience. Hiring and laying the proper groundwork for using an expert witness at trial involves knowing Colorado rules of criminal procedure and evidence. These are not areas where a defendant wants to face a jury alone. Contact the Colorado criminal defense experts at Mile High Legal if you are facing an assault charge where SBI has been alleged by the prosecution to get the help you need.
[i] People v. Williams, 23 P.3d 1229, 1234 (Colo. App. 2000)
[ii] People v. Thompson, 748 P.2d 793, 794 (Colo. 1988)
[iii] 2021 CO 46
[iv] § 18-3-202(1)(a), C.R.S.
