CRS 42-4-239 – Texting and Driving

CRS 42-4-239 is the Colorado statute that makes it a crime for a person 18 years of age or older to text while operating a motor vehicle. A violation of this law is a class 2 traffic misdemeanor that is punishable by a minimum fine of $300.

The code section states that”

“a person eighteen years of age or older shall not use a wireless telephone for the purpose of engaging in text messaging or other similar forms of manual data entry or transmission while operating a motor vehicle.”

Examples of illegal acts

driving through Denver and text messaging a friend regarding lunch.
waiting at a traffic light and responding to a parent’s text.
traveling along a Colorado Springs roadway and texting someone on a cell phone for directions.

Defenses

A person can use a legal defense to contest an allegation of violating this law. Common defenses include the motorist showing that:

the police officer did not actually see the driver use a wireless phone,
he/she was not “operating” a car, and
there was an emergency.

Penalties

Texting while driving is a misdemeanor traffic offense in the State of Colorado This is opposed to a felony or an infraction (either a class A traffic infraction or a class B infraction).

The crime is punishable by:

a $300 fine, and
four points on the motorist’s driving record.

These penalties become harsher (such as possible jail time) if a violation was the proximate cause of bodily injury or death to another driver.

Our Denver Colorado criminal defense attorneys will explain the following in this article:

1. When is it a crime to text while driving?

A prosecutor must prove the following to convict a person under this statute:

such person was “operating” a motor vehicle,”
a law enforcement officer saw the person use a cell phone,
the operator of a motor vehicle used the phone to text, and
the motorist was driving carelessly, or was guilty of careless driving or driving in an unsafe manner.¹

A person “operates” a motor vehicle when he/she drives on:

public highways, and/or
public access highways.²

Colorado Revised Statutes 42-4-239(1)(b) specifically states that operating a motor vehicle:

“shall not mean maintaining the instruments of control while the motor vehicle is at rest in a shoulder lane or lawfully parked.”³
The crime of texting while driving is often referred to as the “misuse of a wireless telephone.”

The main aim of this statute is public safety, as texting while driving can take a person’s life. The act is a matter of statewide concern.

2. Can a driver raise a legal defense?

Criminal defense lawyers use different legal strategies to challenge allegations of violating provisions of this section. Some include showing that:

the police officer did not see the accused use a cell phone.
the accused was not operating a car.
there was an emergency.

2.1 Officer did not see the driver use a wireless phone

Recall that a driver is only guilty under these laws if a police officer actually witnessed the driver of a moving vehicle operate a cell phone. This means it is always a defense for a defendant to show that an officer did not see him/her use a phone.

2.2 Driver not “operating” a vehicle

Recall too that an accused is only guilty of texting while driving if he/she:

texted, and
did so when operating a motor vehicle.

A defendant, therefore, can try to beat a charge by showing that he/she was not operating a car. Perhaps, for example, the accused was texting while sitting in the driver’s seat of a parked vehicle.

2.3 Emergency

A driver is not guilty under CRS 42-4-239 if he/she texted:

to contact a public safety entity, or
during an emergency (for example, a hazardous materials emergency, or a serious road hazard)⁴

An accused, then, can support his/her innocence by saying he/she texted for one of these purposes.

3. What are the penalties for breaking this law?

A violation of this law used to be charged as an infraction. The penalty was a fine of fifty dollars, with a subsequent violation of subsection (3) resulting in a fine of one hundred dollars.⁵

Colorado Senate Bill 17-027, though, changed the penalties for the misuse of a wireless telephone in 2017.

Traffic violations under CRS 42-4-239 are charged as class 2 misdemeanor traffic offenses. The penalties include:

a fine of $300 (plus a minor surcharge), and
four points being placed on the offender’s driver’s license.⁶

Under the Colorado DMV point system, a person’s Colorado driver’s license can be suspended if he/she accumulates too many demerits for traffic regulation violations within a certain consecutive time period.

Note that if a person misuses a wireless telephone while driving – and this proximately causes another’s death or bodily injury – then the person faces class 1 misdemeanor traffic offense charges. This carries 10 days to 12 months in county jail and/or $300 to $1,000 in fines.

Also note that people under 18 who violate CRS 42-4-239 face class A traffic infraction charges. A first offense carries $50 in fines. Subsequent offenses carry $100 in fines.

4. Can a violation lead to other charges under Colorado law?

A person stopped for texting and driving can get charged with other offenses.

Once law enforcement authorities stop a driver for a traffic violation, they can charge, and arrest, that person for any other crimes if there is probable cause to believe that the motorist committed them.

For example, if the police stop a driver for the misuse of a cell phone, they can charge the motorist with DUI if they have probable cause to believe the person is intoxicated. Further, they could also charge a driver with such offenses as:

DWAI, and
reckless driving, and
violation of a Colorado seat belts law.

Depending on the offense, probable cause of a crime also means authorities can lawfully search a vehicle.

5. How does a ticket under this statute impact a personal injury lawsuit?

A driver that violates these laws may do so while also causing a traffic accident with another car. If so, and the other driver suffers injuries in the accident, he/she can later file a personal injury lawsuit against the motorist.

In this suit, the at-fault driver may be found “negligent.”

A negligent driver is responsible for compensating the injured party for any injuries he/she sustained.

Sometimes it is difficult to prove negligence. However, Colorado law says that a driver is “negligent per se” if he/she caused an accident and was in violation of a statute.

In the context of CRS 42-4-239, this means a driver would be negligent per se if he/she:

caused an accident and injured another party, and
was texting while driving.

6. Are there laws related to this statute?

There are three laws related to this statute. These are:

failure to yield to an emergency vehicle – CRS 42-4-705,
failure to yield right-of-way at an intersection – CRS 42-4-701, and
violating a speed limit – CRS 42-4-1101.

6.1 Failure to yield to an emergency vehicle – CRS 42-4-705

CRS 42-4-705 is the California statute that says drivers must:

give the right-of-way to approaching emergency vehicles, and
try to move to the right side of the road when approached by such a vehicle.

6.2 Failure to yield right-of-way at an intersection – CRS 42-4-701

CRS 42-4-701 applies when drivers reach an intersection at the same time. In this event, the law says the driver on the left yields the right-of-way to the driver on the right.

6.3 Violating a speed limit – CRS 42-4-1101

CRS 42-4-1101 is the Colorado law that prohibits speeding. Penalties depend on exactly how fast a motorist was driving.

For additional help…

For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact us at Shouse Law Group.

Legal References:

CRS 42-4-239. See also Senate Bill 17-027.
CRS 42-4-239(1)(b).
See same.
CRS 42-4-239(4).
CRS 42-4-239.
Senate Bill 17-027.

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