Colorado Felony Menacing Laws And Road Rage Prosecutions – 18-3-206 CRS

Introduction – Road Rage Arrests Involving Deadly Weapons – Most Often Charged As The Crime Of Felony Menacing In Colorado

In 2023, a Colorado man shot and killed a 13 year old following a road rage confrontation and also wounded the child’s mother. He was sentenced to life in prison.

In 2023, two very young men only 18 years of age, were also charged with first-degree murder in Colorado road rage incidents.

The increase in road rage in Colorado is real – palpable – and exponentially increasing. If you drive in the Denver Metro area, you have experienced it. The anger of average citizens at rates never before seen in the state and the consequent criminal charges reflect a “raging” population that has exploded in the state post COVID.

Colorado State Patrol (CSP) data shows that it receives tens of thousands of road rage calls throughout the year and that number is increasing. In 2021, it received 30,347 calls. In 2022, it was 31,760.

My personal caseload of road rage incidents has increased exponentially.

Perceived Disrespect

Road rage is not new – it takes the many forms – recklessly and intentionally swerving vehicles toward another car, speeding, brake-checking, aggressive and hostile tailgating, running red lights and stop signs or, as is the subject of this article, brandishing weapons such as hand or long guns and sometimes firing those guns at other cars.

The causes of road rage are also very familiar.

Road rage is often caused by the stresses of everyday life – heavy traffic, running late for work or to pick up the kids. It can arise when you are behind slower drivers, unforeseen road construction merge lanes or a person who fails to run a yellow light. It is often the result of displaced anger and unhappiness. So called “high-anger drivers” act on their anger and impulsiveness because of the many stressors we all suffer each day.

The Response

Our perception of others is easily distorted in our vehicles. Often when an angry person “erupts” it is because they somehow perceive a measure of disrespect – another’s act which is often misinterpreted and attributed, in the absence of facts or other information – as a kind of disrespect.

The perceived disrespect is illusory. As a result of a person running a red light, speeding, or something else the road rager perceives their actions as a personal threat — that driver becomes angry and place unreasonable blame on another person. The road rager no longer feel in control of the situation, even though they were never in real control  in the first place.

This is called the  “illusion of superiority”  is well understood and has again been the subject of a recent study by the Colorado Department of Transportation

The Law of Menacing – Two Types – With Or Without A Deadly Weapon

When a gun is involved in an act of road rage the crime charged most often is the Colorado crime of Felony Menacing – 18-3-206.

The Current Law Of Menacing

In March 2022, the Colorado state legislator changed modified the penalties for misdemeanor menacing reclassifying it to the highest class misdemeanor – a class 1. While felony menacing remained a class 5 felony, the following language was added: “by the use of a firearm, knife, bludgeon, simulated firearm, knife, or bludgeon.”

Section 18-3-206 of the Colorado Revised Statutes (C.R.S.) provides

A person commits the crime of menacing if, by any threat or physical action, he or she knowingly places or attempts to place another person in fear of imminent serious bodily injury.

Menacing is a class 1 misdemeanor, but it is a class 5 felony if committed by the use of a firearm, knife, or bludgeon or a simulated firearm, knife, or bludgeon.

C.R.S. § 18-3-206

Menacing – A Misdemeanor or a Felony?

Menacing As A Misdemeanor

If a deadly weapon is NOT involved, menacing is a class 1 Colorado misdemeanor – up to 364 days in jail, and/or a fine of up to $1,000.00.

Menacing As A Felony

If a deadly weapon such as a gun is involved it the crime escalates to a Colorado class 5 felony with a possible penalty of up to 1-3 years in prison, and/or a fine of $1,000.00 to $100,000.00.

What Is The Legal Definition Of Serious Bodily Injury?

Section 18-1-901(3)(p), CRS defines “serious bodily injury” as bodily 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 the impairment of the function of any part or organ of the body,
• or breaks, fractures, or burns of the second or third degree.

A Fear of Imminent Serious Bodily Injury

Imminent, as in imminent serious bodily injury – means that an alleged victim is in danger of being harmed at that moment – the threat is immediate. For example, someone pointing a gun at an individual is interpreted as an imminent threat. Imminent means it has not happened yet but it is perceived as about to happen.

 The Mental State Of Menacing – Committing A Crime “Knowingly”

Knowingly is exactly as it sounds – an awareness of one’s behavior. Under Colorado Law a person acts “knowingly” when he or she is aware that his conduct is of such nature or that such circumstance exists. The crime of felony menacing requires that the accused knowingly place or attempt to place another person in fear of imminent serious bodily injury.

A person acts “knowingly” or “willfully”, with respect to a result of his conduct, when he is aware that his conduct is practically certain to cause the result.” C.R.S. 18-1-501(6).

Sidebar 1: In Colorado Felony Menacing Cases – It Does NOT Matter That The Target Of the Crime, (The Alleged “Victim”) Was NOT Afraid

Colorado law makes it unnecessary for the prosecution to prove actual subjective fear on the part of the alleged victim of menacing. The law does NOT require that the state prove the defendant intended to cause fear, only that his or her acts were committed knowingly.

An awareness that the alleged victim would be placed in fear of imminent serious bodily injury is enough to satisfy this element of the crime – there is no requirement for proof that the alleged victim was actually afraid that the conduct of the accused was practically certain to cause fear in a person.

Since this may surprise many – let me put it a little differently – the mental culpability element of felony menacing is satisfied when the offender is aware that he is placing or attempting to place another person in fear of imminent serious bodily injury by the use of a deadly weapon, regardless of whether or the alleged target of his actions actually felt that fear. It is unnecessary for the victim to actually hear or be cognizant of any threat from defendant.

If there is evidence from which the jury could reasonably find that defendant knew his actions, if discovered, would place the victim in fear of imminent serious bodily injury by use of a deadly weapon, then the intent element of the offense may be established.

People v. Zieg, 841 P.2d at 344.

Defending a Colorado Menacing Charge – The Most Used Defense Is Self Defense

While there may be other possible defenses to road rage where an accused threatens another with a deadly weapon (most often a gun) – the defense most often asserted to charges arising out of a road rage scenario involving a gun is that the accused acted in self-defense. Depending on the circumstances at the time of the alleged incident, your lawyer may be able to raise a successful claim of self-defense.

But.. the law of self defense is complex and can be a legal minefield.

A Road Rage Hypothetical: Felony Menacing, And Self Defense

A common fact pattern in Colorado:

Driver A is forced to merge from a lane about to be blocked by construction cones to the adjacent lane. Driver B, in the adjacent lane, misinterprets Driver A’s merge action as “cutting him off.”

Road rage ensues.

Driver B begins to tailgate Driver A increasing his speed and driving aggressively while passing other vehicles along the road. The chase continues through several intersections almost involving other non-involved vehicles.

Driver B then pulls along side Driver A and points a gun at him.

Driver A then draws his weapon and shoots Driver A – killing him.

In my opinion, this is a classic case to use the defense of self defense for Driver A.

Understanding self defense in this context requires a close review of Colorado’s law of self defense.

The Law: Self Defense In Colorado

Colorado Revised Statutes Title 18. Criminal Code § 18-1-704. Use of physical force in defense of a person

(1) Except as provided in subsections (2) and (3) of this section, a person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for that purpose.

(2) Deadly physical force may be used only if a person reasonably believes a lesser degree of force is inadequate and:

(a) The actor has reasonable ground to believe, and does believe, that he or another person is in imminent danger of being killed or of receiving great bodily injury; or

(b) The other person is using or reasonably appears about to use physical force against an occupant of a dwelling or business establishment while committing or attempting to commit burglary as defined in sections 18-4-202 to 18-4-204;

Sidebar 2: No Duty To Retreat

The long-established law in Colorado is that an innocent victim of assault need not retreat before using deadly force if the victim believes the use of such force is necessary for self-protection.

A person is justified in using physical force to defend himself or herself simply if he or she believes an aggressor will use force on them.

Deadly force is … different.

The use of deadly force is lawfully permitted only if a person reasonably believes they are in imminent danger of significant harm or death and less lethal force will not stop the threat.

Self-defense is an affirmative defense. If it is allowed at trial by the trial Judge, the District Attorney must disprove the defense beyond a reasonable doubt.

The main components of self-defense are:

• • • imminence,
    • necessity, … and
    • proportionality.

Proportionality is always a key element and in the context of road rage cases, it means the amount of force used against the attacker must be an amount which the defending party “reasonably believes to be necessary” to stop the attacker.

The degree of force MUST BE proportional to the amount of force or harm the defending party reasonably believes the attacker will inflict. The use of a gun to threaten another in a battle of middle fingers is NOT proportional.

A response in a traffic dispute must be “reasonable” – a use of force which is drastically disproportionate to the amount of force used by the initial aggressor will not be sustained as lawful self defense.

Side Bar 3: Understanding “Stand Your Ground”

Colorado follows most “stand your ground” states but goes even further in the state’s embrace of the stand your ground doctrine. Colorado case law goes so far as prohibiting prosecutors from even mentioning an obligation to retreat at the trial.

“[N]o appellate court in Colorado (at least in a published opinion) has permitted argument regarding an unused avenue of retreat, even if offered only to attack the reasonableness of a defendant’s use of force.

A Defendant’s “decision to retreat is no more proof that she faced an imminent threat of unlawful force than a decision to remain and fight,”

Colorado law is very strong on this issue. Even mentioning an obligation to retreat such as the recent argument that the Defendant “has to exhaust all reasonable means of escape before killing” is NOT the law.

The long-established rule in Colorado is that an innocent victim of assault need not retreat before using deadly force if the victim believes the use of such force is necessary for self-protection.

In duty-to-retreat states, you are not legally allowed to use deadly force to defend himself if the jury concludes that you could have safely avoided the risk of death or serious bodily injury (or the other relevant crimes) by retreating with complete safety.

In stand-your-ground states, you are legally allowed to use deadly force to defend yourself, regardless of whether the jury concludes that you could have safely avoided the risk of death etc. by retreating.

The Three Key Exceptions To Self Defense In Road Rage Menacing Cases: The Provocation Exception, The Initial Aggressor Exception And Mutual Combat Agreements

The three key exceptions that can defeat a claim of self defense in road rage cases are:

1. The alleged victim provoked another person’s use of physical force.
2. The alleged victim was the initial aggressor in the confrontation and failed to back out of the confrontation before it occurs.
3. The physical force involved was the product of “mutual combat” or “combat by agreement” not otherwise authorized by law.

I have written extensively about self defense law in Colorado because of it’s importance and the complexity surrounding the trial use of this important defense. These articles have addressed areas of Colorado self defense law such as:

• when innocent third parties are harmed,
• when there are multiple assailants involved,
• and agreements to fight as between mutual combatants.

One, or all of these may be present in road rage cases.

In a recent New Mexico case involved two drivers in a “road rage” dispute over a minor right of way. They roared, offered single-digit salutes, shook fists, and chased each other through traffic. Their recklessness caused a third motorist to lose control and crash into a fourth driver, killing her. Both road ragers faced motor vehiclicular homicide charges. Both drivers argued that the other began the fight with gestures.

They were convicted and imprisoned.

Never Backs Down – A Serious Flaw That May Result In Serious Bodily Injury Or Even Death

A recent study found that over 50% of drivers drive aggressively, which increases their risk of being in a collision by 15 times. While distracted or intoxicated driving carries similar risks, aggressive driving frequently results in more serious injuries, according to the study.

I certainly “get” road rage. I am also very susceptible to it. I was raised in one of the toughest areas of the Boston, Massachusetts metropolitan area (Chelsea, Mass.). Chelsea is a place where the toughest men and woman pride themselves in “never backing down” from a physical challenge. At 67, life has taught me that one’s ego is hardly worth the potential terrible consequences of a never back down belief system has the potential of destroying all that one values and changing forever those things that matter most.

The truth is this .. there is no personal affront to your dignity that is worth dying over, worth killing another over, or worth ending in a prison sentence. No challenge to your dignity is worth ruining your life and the lives of your family – including ruining your family’s financial future.

Senseless rod rage confrontations can end it all.

Summary And Conclusion – Colorado Felony Menacing Laws And Road Rage Prosecutions – 18-3-206 CRS

The Steps To Take To Avoid A Road Rage Disaster – Some Common Sense

One of the best articles I have read in my research in this area was an interview of ex-law enforcement officer and writer Jim Fleming. In a piece entitled The Legal Aftermath of Defense Against Road Rage , he spoke the following words of wisdom:

If you are involved in an incident out on the road, and you can do so safely, drive away without response, without retort, without gestures. If you are pursued, try to get to a public place, a restaurant, a service station, a government building, where you can surround yourself with witnesses.

Lock your doors, keep your windows up, do not exit the vehicle and, if you can, drive away. If they carry through with an attack and you can still drive away, drive away.

I am going to stay in my car, and get away from the situation, driving as safely as I can. If I am followed, I will drive defensively, and I will not go home for obvious reasons. I will drive to the nearest public place that I can find, and I will go there and surround myself with witnesses.

Colorado Criminal Law – Colorado Felony Menacing Laws And Road Rage Prosecutions – 18-3-206 CRS

The reader is alerted to the fact that Colorado criminal law, like criminal law in every state and at the Federal level, changes constantly. The article appearing above was accurate at the time it was drafted but it cannot account for changes occurring after it was uploaded.

ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at: hmsteinberg@hotmail.com

A Denver Colorado 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 – please call 720-220-2277.

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H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way.