Colorado district attorneys urge lawmakers to clarify the meaning of "serious bodily injury"

The Colorado District Attorneys' Council is pushing for a small change in a criminal justice statute that could make a big difference in prosecutors ability to hold violent offenders accountable.

At issue is what qualifies as "serious bodily injury." A bill that's making its way through the legislature would define it specifically.

It stems from a case out of Arapahoe County involving a defendant named Delbert Ray Vigil. 

According to witnesses, Vigil got in an argument with a homeless man in 2019, threatened to kill him and then stabbed him in the neck. 

He was initially charged with first-degree assault, causing serious bodily injury.

18th Judicial District Attorney John Kellner's office prosecuted the case.

"What we had contended, what the trial court agreed with was... it was the risk of serious bodily injury, it was the risk that was associated, that they almost died," he said. 

Vigil appealed the decision and the case went all the way to the Colorado Supreme Court, which had a different take. 

The court said, because the knife missed major arteries and organs and the victim survived, it wasn't serious bodily injury.

"The confusion around the serious bodily injury statute right now is it really looks at the actual outcome of let's say the stabbing or the shooting rather than the risk of danger to the life of another person," Kellner said. "We want to make sure that it's understood that, if somebody for instance, stabs another person in the neck and thankfully, by the grace of God, doesn't hit, you know, some vital organ... doesn't kill them, but that's still prosecuted as serious bodily injury." 

He says the bill would clarify that in law.

"Across our state, as we're dealing with violent crime, trying to find ways to address this, we need clarity in our statutes to help ensure that prosecutors, like the folks in my office, like the prosecutors across the state, can hold these violent offenders fully accountable," he said. 

In Vigil's case, the Supreme Court's ruling resulted in prosecutors pleading the case down to second-degree assault, which resulted in community corrections instead of prison. 

"Right now, this confusion only benefits criminal defendants charged with violent crime," Kellner said. 

He says the clarification in statute is especially important in light of crime statistics showing non-fatal shootings are on the rise. 

Just because someone is a bad shot, Kellner says, the individual shouldn't get off with a lighter sentence.

The bill passed the Senate but still needs approval in the House.