Is texting while driving legal in Colorado? State lawmaker says, ‘Hell, no!’

Author: Peter Marcus - June 22, 2017 - Updated: January 16, 2018

A state senator behind legislation this year that increased the penalty for texting while driving is “livid” over recent conversations that the bill may have made the dangerous practice legal.

Sen. Lois Court, D-Denver, referenced a Tuesday Denver Post article with the headline, “Hold the phone. Did Colorado just make it legal to text and drive?”

The article, by Post reporter John Frank, accurately states that the new state law only applies to texting while driving carelessly. But Court is worried that the headline is sending an irresponsible, dangerous message to motorists.

“You cannot do it while your car is moving and not be careless,” Court told Colorado Politics. “So, including the language in the bill is not implying that it’s okay to do it. It’s saying that it is not okay to do it. It is dangerous, careless, imprudent behavior, so we put the words in that say that it is ‘careless’ and ‘imprudent’ just like careless driving. But texting is careless. They are the same.”

Senate Bill 27 saw heavy negotiations during the legislative session, in which lawmakers settled on increasing the penalty for texting while driving to a $300 fine and four points against the violator’s driver’s license for first or subsequent offenses. Before the new law, fines were set at $50.

Sponsors of the bill had wanted to raise the fine to $500 for a first offense and a $750 fine for a second or subsequent offense. But the proposal saw opposition from Sen. Owen Hill, R-Colorado Springs, who is challenging U.S. Rep. Doug Lamborn of Colorado Springs in a Republican primary. After bargaining with Hill, sponsors of the legislation settled on the $300 fine and careless driving component.

The bill was amended to model the state’s careless driving law in an effort to protect those who may be texting in their cars, but not necessarily creating a dangerous situation. Examples given were when someone is sitting at a red light, or an Uber driver who has pulled up to a location and is texting a passenger.

Careless driving is a class 2 misdemeanor traffic offense.

The Post headline would suggest that the way the bill was written might allow for texting while driving. But sponsors of the measure and law enforcement say the compromise was intended to protect drivers from fines who are not driving carelessly, while raising fines for those who are clearly driving in a careless manner while texting.

“Most people recognize that it is illegal .… People know that it’s not a free-for-all do-whatever-you-want,” said Chief Michael Phibbs, chairman of the Colorado Association of Chiefs of Police legislative committee. “You could be in a car texting and not be in trouble, but I don’t think that a reasonable person would interpret anything about the new law to think that it’s okay to text and drive.”

Phibbs acknowledged that much of the enforcement comes down to the discretion of the officer handling the traffic stop, which is no different than how officers handled texting while driving before lawmakers increased fines this year. With the new law, officers must observe careless driving and the driver using a phone.

A texting while driving infraction is unlike the stringent laws around driving under the influence, in which it is illegal to even be sitting in the driver’s seat with the keys in the ignition while drunk or under the influence of drugs.

Sgt. Rob Madden – a spokesman for Colorado State Patrol, which supported the bill this year – agreed that little changed in terms of enforcement since the legislation became law earlier this month.

“The difficult aspect of it is that there are so many different what-if scenarios that can get brought into play, it changes my answer depending on what direction I look at it from,” Madden said. “Part of the new law that’s written, yes, it is difficult to write (a ticket), but looking at the same law, the same words, same everything, thinking about it in a different way, my gosh, this actually is easier to write (a ticket).”

Prosecutors, however, say that while the law is well intentioned, it could be difficult to prove in the courtroom.

“I think the message of the new law is strong and will serve as a deterrent to this behavior. How it plays out in the courtroom may be a different story as we have changed the offense from one of strict liability, meaning if you do this (text while driving) you are guilty, to one that requires prosecutors to prove beyond a reasonable doubt that in any given case, the person was texting while driving and that this act was careless when done,” said Tom Raynes, executive director of the Colorado District Attorneys’ Council. “This is a new element to prove. As a general proposition any time there is an additional element to prove, a case gets a little tougher.”

The Post article accurately states that before the law, any text messaging by a motorist was prohibited. But law enforcement said during the debate in the legislature that officers were using their discretion and rarely, if at all, issuing citations to motorists who were not driving in a careless manner, such as texting while being stopped in traffic.

Court said the intention behind the bill this year was to make people realize texting while driving is a serious issue. She believes the message is advanced by increasing fines.

When asked whether her legislation made texting while driving legal in Colorado, Court responded, “Hell, no! Not even a maybe.”

“That headline was so egregious,” Court said of the Post article.

A spokesman for Senate Democrats, David Pourshoushtari, tweeted on Wednesday, “This is a misleading headline that’s clearly meant as click bait.”

“How can you not be careless if you’re moving along and texting? That’s what’s so frustrating to me about this,” Court said. “We didn’t do all this work so people can get these kind of mixed messages.”

Peter Marcus

Peter Marcus

Peter Marcus is senior statehouse reporter for Colorado Politics. He covers the legislature and previously covered politics, the governor’s office, the legislature and Congress for The Durango Herald. He joined The Herald in 2014 from The Colorado Statesman, a Denver-based political weekly. The Washington Post twice named Marcus one of the nation’s top state-based political and legislative reporters.