First Degree Aggravated Motor Vehicle Theft

Colorado’s Motor Vehicle Theft laws can be confusing. For example if the owner of a car lets you use his car for two days and you keep it for a week is that motor vehicle theft? The answer may surprise you.

Under Colorado Revised Statutes Section 18-4-409(2), a person commits first degree aggravated motor vehicle theft:

“if he or she knowingly obtains or exercises control over the motor vehicle of another without authorization or by threat or deception.”

Almost all crimes require two basic components the mens rea (mental state of the actor in committing the crime) and the actus reus (the physical act that actually is the commission of the crime itself).

Understanding whether the State can prove it’s case involves a comprehensive knowledge of the crime with which you are charged. First, and always, one reads the law as of 2016:

1. As used in this section, unless the context otherwise requires:
   1. “Motor vehicle” means all vehicles of whatever description propelled by any power other than muscular, except vehicles running on rails.
   2. “Vehicle identification number”means the serial number placed upon the motor vehicle by the manufacturer thereof or assigned to the motor vehicle by the department of revenue.
2. A person commits aggravated motor vehicle theft in the first degree if he or she knowingly obtains or exercises control over the motor vehicle of another without authorization or by threat or deception and:
   1. Retains possession or control of the motor vehicle for more than twenty-four hours; or
   2. Attempts to alter or disguise or alters or disguises the appearance of the motor vehicle; or
   3. Attempts to alter or remove or alters or removes the vehicle identification number; or
   4. Uses the motor vehicle in the commission of a crime other than a traffic offense; or
   5. Causes five hundred dollars or more property damage, including but not limited to property damage to the motor vehicle involved, in the course of obtaining control over or in the exercise of control of the motor vehicle; or
   6. Causes bodily injury to another person while he or she is in the exercise of control of the motor vehicle; or
   7. Removes the motor vehicle from this state for a period of time in excess of twelve hours; or
   8. Unlawfully attaches or otherwise displays in or upon the motor vehicle license plates other than those officially issued for the motor vehicle.
3. Aggravated motor vehicle theft in the first degree is a:
   1. Class 5 felony if the value of the motor vehicle or motor vehicles involved is less than twenty thousand dollars;
      a.5 Class 4 felony if the value of the motor vehicle or motor vehicles involved is twenty thousand dollars or more but less than one hundred thousand dollars;
   2. Class 3 felony if the value of the motor vehicle or motor vehicles involved is more than one hundred thousand dollars or if the defendant has twice previously been convicted or adjudicated of charges separately brought and tried either in this state or elsewhere of an offense involving theft of a motor vehicle under the laws of this state, any other state, the United States, or any territory subject to the jurisdiction of the United States.
4. A person commits aggravated motor vehicle theft in the second degree if he or she knowingly obtains or exercises control over the motor vehicle of another without authorization or by threat or deception and if none of the aggravating factors in subsection (2) of this section are present. Aggravated motor vehicle theft in the second degree is a:
   1. Class 5 felony if the value of the motor vehicle or motor vehicles involved is twenty thousand dollars or more;
   2. Class 6 felony if the value of the motor vehicle or motor vehicles involved is one thousand dollars or more but less than twenty thousand dollars;
   3. Class 1 misdemeanor if the value of the motor vehicle or motor vehicles involved is less than one thousand dollars.
   4.5 Whenever a person is convicted of, pleads guilty or nolo contendere to, receives a deferred judgment or sentence for, or is adjudicated a juvenile delinquent for, a violation of this section, the offender’s driver’s license shall be revoked as provided in section 42-2-125, C.R.S.
5. Consistent with section 18-1-202, if the theft of a motor vehicle occurs in one jurisdiction and the motor vehicle is recovered in another jurisdiction, the offender may be tried in the jurisdiction where the theft occurred, in any jurisdiction through which the motor vehicle was operated or transported, or in the jurisdiction in which the motor vehicle was recovered.

Colorado Jury Instructions are used to guide juries in making the correct decision as they deliberate on the guilt or innocence of an individual charged with a crime in this case 18-4-409 First Degree Aggravated Motor Vehicle Theft.

In the case of 18-4-409 First Degree Aggravated Motor Vehicle Theft, the mental stateof “knowingly,” applies not only to the accused’s exercise of control over the vehicle, but also to his or her awareness of lack of authority.

Here is the relevant jury instruction for 18-4-409 First Degree Aggravated Motor Vehicle Theft:

To commit the crime of 18-4-409 First Degree Aggravated Motor Vehicle Theft (subpart retained over 24 hours) the State must prove beyond a reasonable doubt that the Defendant:

1. In the State of Colorado, at or about the date and place charged,
2. knowingly,
3. obtained and exercised control over the motor vehicle,
4. belonging to another person,
5. without authorization, and
6. the value of the motor vehicle involved is twenty thousand dollars or less, and
7. the Defendant,
8. had possession and control over the motor vehicle for more than twenty-four (24) hours.

Reading the way the statute is drafted you can see that the culpable mental state, “knowingly,” applies not only to a defendant’s exercise of control over the vehicle, but also to his or her awareness of lack of authority.

Knowingly “stands alone” this is known as a “stand-alone element” and therefore it applies to the succeeding the elements that follow it. It applies to all of the subsequent elements of the offense.

A Defendant must therefore KNOW that the possession of the automobile was without authorization. This is NOT an objective, reasonable person test, it is a subjective test (what was in the mind of THIS Defendant) and therefore the affirmative defense of mistake of fact under §18-1-504(1)(a) would relieve the accused from criminal liability.

The affirmative defense of mistake of fact “negatives” the existence of a particular mental state essential to the commission of this offense in this case knowingly.

If a Defendant has “a good faith belief” based on a mistake of fact that he or she was entitled to take the vehicle, a Colorado jury should find him NOT guilty of motor vehicle theft.

While there is no statutory definition of the term “without authorization” or “authorization,”

Colorado courts have defined “without authorization” in this context to mean:

“that the owner of the property, or a person in possession of the property with the owner’s consent, has not given the actor permission to exercise control over the property.”

To summarize Section 18-4-409(2)(a) contemplates a culpable mental state involving an awareness by the offender that he is obtaining or exercising control over the vehicle of another and that his control is indeed without authorization.

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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.

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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 Understanding Colorado 18-4-409 First Degree Aggravated Motor Vehicle Theft You Must KNOW You Are Stealing A Car.