Why Texting While Driving Is Still Legal in Colorado and the Fight for Change

Why Texting While Driving Is Still Legal in Colorado and the Fight for Change
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Editor's note: This post is the sixth in our series about Denver traffic. Click to read our previous items, "Denver's Longest Traffic Signal and Wait Times on Major Routes," "Denver's Fight to Prevent Total Traffic Gridlock Downtown," "Denver's Ten Most Dangerous Intersections," "Denver Traffic Deaths on Pace for One of the Highest Totals This Century," "Denver Hit-and-Runs: Most Dangerous Days of the Week" and "Most Dangerous Times of Day to Drive in Denver."

Update: Senate Bill 19-012, the texting while driving bill described below, was unanimously approved by the Colorado Senate's transportation-and-energy committee on February 14. Its next stop is the appropriations committee. Continue for our previous coverage.

Despite plenty of evidence that texting while driving is dangerous and can be fatal, it's still legal in Colorado to do so for those eighteen and older. But while efforts to make hands-free driving the law of the state have fallen short so far, advocates are already gearing up for another fight, and this time they're determined to win.

Distracted driving caused by people thumbing their phones "has to stop or be decreased in a meaningful way," says attorney Scott O'Sullivan. "The costs on society, on our medical system and on people's lives — on the lives of husbands, wives, their kids, their family members, on everyone who has to take care of people who are devastated by injuries caused by this — are just too high."

Of late, O'Sullivan has been raising attention about risks on the road by way of the Denver Accident Map, a new resource developed by his personal-injury practice, the O'Sullivan Law Firm, in conjunction with his brother-in-law Andrew Russette, whom he proudly calls a "super data nerd." The map, which draws from Denver Police Department statistics, is updated every 24 hours and offers a multiplicity of information that's easy to access and consistently fascinating.

But O'Sullivan has also been active in pushing for legislative changes to make driving in Colorado safer. In 2017, he testified on behalf of the Increase Penalty for Texting While Driving Act, sponsored by Senator Lois Court. The measure banned texting while driving for those under age eighteen and increased the penalty for adults found guilty of distracted driving from $50 to $300.

Then, during the 2018 session, "we tried to make our state truly hands-free," O'Sullivan notes.

The measure in question was the Use of Mobile Electronic Devices While Driving Act, again sponsored by Court. It's shared below as well, but its summary reads in part:
Current law prohibits the use of wireless telephones while driving for individuals who are younger than 18 years of age. The bill:

• Extends the prohibition to drivers of all ages;
• Increases the penalty for minor drivers from $50 per violation to $300 per violation, to match the penalty that currently applies to adult drivers;
• Extends the existing prohibition of the use of wireless telephones to include all mobile electronic devices;
• Creates an exception to the prohibition of the use of mobile electronic devices for adult drivers who use a mobile electronic device through the use of a hands-free device; and
• Repeals a sentence enhancement for a violation that causes a bodily injury or death.
"What we were trying to do is get people to not use their phones, whether texting or calling, unless it was through Bluetooth or the speaker system in their car," O'Sullivan explains. "That way, they won't have the phone or device in their hand. And we wanted to make the penalties stiffer, so that we could deter the sort of distracted driving that's occurring on a daily basis."

There was plenty of support for this approach outside the General Assembly, O'Sullivan points out. "Organizations that were behind it included Bicycle Colorado, Vision Zero, Bike Denver, BikerDown, which is a nonprofit for injured motorcycle drivers, and CORD [Coloradans Organized for Responsible Driving], which Susan Dane founded to fight against distracted driving and promote safety for motorcycle riders. And it was also supported by AAA Colorado and CDOT [the Colorado Department of Transportation], which gave compelling statistics about why it's so important to limit and decrease distracted driving on our roads."

Nonetheless, the bill was scheduled to be heard by the State, Veterans, & Military Affairs committee, which is frequently referred to by General Assembly insiders as the "kill committee." And in this case, the panel lived up to its nickname. The measure was defeated in a party-line vote.

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"The hearing was packed, standing room only, and several people from each of the organizations testified in support of the bill," O'Sullivan recalls. "But the committee killed it anyway — and there was an interesting side note. Senator Owen Hill from Colorado Springs made a comment during testimony that he had been hit while driving a motorcycle by someone who was distracted by, he thought, a phone or mobile device. But then he voted to kill the bill, too."

Backers of the bill aren't giving up, however, and O'Sullivan says he expects a similar measure to be introduced near the start of the 2019 legislation session. But he's uncertain that marshaling more data will make a difference. "I'm not sure how the statistics can be worse than they already are," he admits. "So I think it's a combination of continuing on a grassroots level in each of these Senate members' districts to educate them as to the seriousness of the issue and use personal anecdotes from people in their district about how great an impact this is having on their lives."

And if that doesn't work? "Sometimes it means voting them out," he allows.

Enforcing the bill would be a challenge, O'Sullivan concedes. "There are probable cause and other Fourth Amendment issues surrounding the expectation of privacy in the use of a device that are hard to get over at the scene of an accident short of a warrant. If a police officer suspects that there was something beyond careless driving that should lead to higher charges, the bill would let them increase the penalty even if they can't get that warrant or they can't get that subpoena to take a look at the offender's phone or device at the scene. But it's definitely very complicated."

Still, O'Sullivan continues, "I'm definitely optimistic that we can get it done this next time. Legislation rightfully takes time, and sometimes we need to wait for the law to catch up with what's happening all around us. If we continue to push for safer laws in Colorado, the legislature and the laws will follow."

Click to read the 2017 Increase Penalty for Texting While Driving Act and the 2018 Use of Mobile Electronic Devices While Driving Act.
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Michael Roberts has written for Westword since October 1990, serving stints as music editor and media columnist. He currently covers everything from breaking news and politics to sports and stories that defy categorization.
Contact: Michael Roberts