Governor Hickenlooper just signed Senate Bill 17-027 on June 1, 2017. This law increases the penalties for texting while driving, however it appears that the elements required to prove a violation have also increased.
CRS 42-4-239 provides that a person under 18 years of age is prohibited from using a cell phone while operating a motor vehicle. A violation of this provision of the statute is a Class A Traffic Infraction punishable by a $50 fine. A second violation of this provision remains a Class A Traffic Infraction and carries an increased fine of $150. 1 point will be assessed against an under 18 year old driver’s record for either a 1st or 2nd offense.
CRS 42-4-239 further provides that a person shall not use a cell phone “for the purpose of engaging in text messaging or other similar forms of manual data entry or transmission while operating a motor vehicle.” A violation of this subsection of the statute is a Class 2 Misdemeanor Traffic Offense (criminal traffic offense) subject to a $300 fine and 4 points against a driver’s record.
If the violation is the proximate cause of bodily injury to another, the classification of the offense increases to a Class 1 Misdemeanor Traffic Offense (criminal traffic offense) and carries a possible penalty from 10 days to 1 year in jail, a fine of $300 to $1000, and 4 points against a driver’s record.
If the violation is the proximate cause of death to another, the classification of the offense is also a Class 1 Misdemeanor Traffic Offense (criminal traffic offense) and carries a possible penalty from 10 days to 1 year in jail, a fine of $300 to $1000, and 4 points against a driver’s record.
The state must be able to prove that a law enforcement officer saw the driver use a cell phone for the purpose of engaging in text messaging or other similar forms of manual data entry or transmission in a manner that caused the operator to drive 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, as prohibited by CRS 42-4-1402 (the careless driving statute).
Thus basically, the state must prove the following:
- that a person was operating a motor vehicle;
- a police officer saw the person use a wireless phone;
- for the purpose of texting (or a similar form of manual data entry or transmission);
- and that the defendant was driving carelessly.
Clearly the aim of the statute is public safety. Texting while driving is an extremely dangerous activity that puts lives at risk. However, there could be much litigation in the courts regarding which violations actually satisfy the elements of the statute. Many different factual scenarios could emerge. For instance, what if someone is typing an address into a GPS/Navigation system and is charged under this statute? A GPS/Navigation is not a wireless phone. A “wireless telephone” by statute is defined as a telephone that operates without a physical, wireline connection to the provider’s equipment. It includes, without limitation, cellular and mobile devices.
Another example may include someone entering data into an IPad or Tablet while driving. An Ipad or Tablet may or may not be construed as a wireless phone. If an Ipad or Tablet is able to make and receive calls, does it qualify as a “wireless telephone”? What if someone was clearly using a wireless phone and texting, however he/she was not driving carelessly? Thus, as long as they’re not driving carelessly is it then “ok” for them to text and drive as much as they want? What if someone was using a cell phone to play “Pokemon Go” and was driving carelessly. Does playing “Pokemon Go” satisfy the element of “manual data entry or transmission”? The factual possibilities are endless.