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Colorado Felony Crimes And The Death Of the Unborn As Victim
By H. Michael Steinberg Colorado Violent Crimes Criminal Defense Lawyer – Attorney
Colorado Felony Crimes And The Death Of the Unborn As Victim – This article addresses whether an unborn child, who is a victim of certain felony and misdemeanor crimes – and who later dies after birth – can be a victim of certain Colorado crimes.
The Unborn And Colorado’s Crime Of Homicide
Colorado’s homicide crime uses Section 18-3-10 to define “homicide” and “person” as follows:
(1) “Homicide” means the killing of a person by another.
(2) ” Person”, when referring to the victim of a homicide, means a human being who had been born and was alive at the time of the homicidal act.
Under Colorado’s Homicide statute – to be a “person” victim as defined under Colorado –three conditions have to be met:
(1) the victim is a human being;
(2) the victim has already been born and;
(3) the victim is still alive.
Colorado’s Homicide Law – Section 18-3-101(2) – is clear and unambiguous on this point. For a child to be a “person” under this law – he or she must have been born and alive at the time of the homicidal act.
For the unborn – a child may be “alive” using a gestational test but is not born within the meaning of a “person” under Section 18-3-101(2) and, therefore, cannot be a victim of a homicide or similar crimes. Thus:
the death of the child who is alive, but not yet born, at the time of the homicidal act, cannot be a victim of homicide.
Comparing The Colorado Crimes Of Vehicular Eluding § 18-9-116.5, And Careless Driving – Resulting in Death – § 42-4-1402
Contrary to Colorado Homicide Law, a child who is unborn that is “in utero” at the time of the offense, who is then subsequently born alive, and dies as a result of the offense, CAN be a victim of under the plain meaning of the statutes defining these two crimes – Vehicular Eluding § 18-9-116.5, And Careless Driving – Resulting in Death – § 42-4-1402.
The Colorado Crime of Reckless Vehicular Eluding is defined as follows:
Any person who, while operating a motor vehicle, knowingly eludes or attempts to elude a peace officer also operating a motor vehicle, and who knows or reasonably should know that he or she is being pursued by said peace officer, and who operates his or her vehicle in a reckless manner, commits vehicular eluding.
If the Colorado crime of Reckless Vehicular Eluding results in the death of another it is enhanced to a Class Three Felony.
The Colorado Crime of Careless Driving is defined as follows:
Any person who drives any motor vehicle . . . in a careless and imprudent manner, without due regard for the width, grade, curves, corners, traffic, and use of the streets and highways and all other attendant circumstances, is guilty of careless driving.
Again, if the Careless Driving it results in the death to another; the crime is enhanced to a Class One Misdemeanor Traffic Offense. § 42-4-1402(2).
Here, as compared to the Colorado crime of Homicide above, the unborn child IS a “person” at the time of death and can be a victim of these crimes and that is because the terms “child” and “person” used in these laws include a fetus injured in the womb, born alive, who subsequently dies of the injuries.
The Colorado Crime Of Reckless Child Abuse Resulting in Death , § 18-6-401 And Driving Under the Influence / Vehicular Assault § 18-3-205.
A fetus unborn at the time of the infliction of injury, who later is born and survives for a period of time, can ALSO be a victim of Reckless Child Abuse Resulting In Death 18-6-401), and Vehicular Assault (and or Resulting In Death), § 18-3-205(1)(b)(1). .
The Colorado Crime of Reckless Child Abuse Causing Death – Section Section 18-6-401
A person commits child abuse if such person causes an injury to a child’s life or health, or permits a child to be unreasonably placed in a situation that poses a threat of injury to the child’s life or health, or engages in a continued pattern of conduct that results in malnourishment, lack of proper medical care, cruel punishment, mistreatment, or an accumulation of injuries that ultimately results in the death of a child or serious bodily injury to a child.
The Colorado Crime of Driving Under the Influence Vehicular Assault/ Homicide Section 18-3-205
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..”
For these crimes, the Colorado Courts Of Appeal have held tha under Colorado Civil Laws (Colorado’s Wrongful Death Law) the following:
A child who is born alive and subsequently dies is a person within the meaning of our wrongful death statute, and a wrongful death action can be maintained regardless of whether the child was viable at the time of the injury or whether the child was viable at the time of birth.
Therefor by analogy to Colorado criminal law:
The term “child” used in section 18-6-401(Reckless Child Abuse Causing Death) and the term “person” used in section 18-3-205 (Driving Under the Influence Vehicular Assault/ Homicide) includes a fetus who is injured while in the womb, is subsequently born and lived outside the womb, and then died from the injuries sustained.
Colorado Felony Crimes And The Death Of the Unborn As Victim
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The reader is admonished 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.
If, after reading this article, you have questions about your case and would like to consider retaining our law firm, we invite you to contact us at the Steinberg Colorado Criminal Defense Law Firm – 303-627-7777.
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ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at [email protected] – 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 – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case.
“A good criminal defense lawyer is someone who devotes themselves to their client’s case from beginning to end, always realizing that this case is the most important thing in that client’s life.”
You should be careful to make a responsible choice in selecting a Colorado Criminal Defense Lawyer – and we encourage you to “vet” our firm. Over the last 30 plus years – by focusing ONLY on Colorado criminal law – H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, to include Colorado criminal law and procedure and trial and courtroom practice. 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 – Colorado Felony Crimes And The Death Of the Unborn As Victim.
Other Articles of Interest:
- The Colorado Crime Of Murder In The First Degree 18-3-102
- Understanding Colorado Law – If You Start A Fight – You May Not Be Allowed To Claim Self Defense
- The Colorado Crime Of Murder In The Second Degree 18-3-103
- The Colorado Crime Of Criminally Negligent Homicide 18-3-105
- The Colorado Crime Of First Degree Assault – 18-3-202
