Section 42-4-239 - [Effective 1/1/2025] Use of a mobile electronic device - definitions - penalty - preemption - legislative declaration(1) As used in this section, unless the context otherwise requires:(a) "Emergency" means a circumstance in which an individual:(I) Has reason to fear for the individual's life or safety or believes that a criminal act may be perpetrated against the individual or another individual, requiring the use of a mobile electronic device when the individual is driving a motor vehicle; or(II) Reports a fire, a traffic accident in which one or more injuries are apparent, a serious road hazard, a medical or hazardous materials Emergency, or an individual who is driving in a reckless, careless, or unsafe manner.(b) "First responder" means: (I) A peace officer, as described in section 16-2.5-101;(II) A firefighter, as defined in section 29-5-203 (10);(III) A volunteer firefighter, as defined in section 31-30-1102 (9)(a);(IV) An emergency medical service provider, as defined in section 25-3.5-103 (8); or(V) Any other individual who responds in a professional capacity to a public safety emergency.(c) "Hands-free accessory" means an accessory with a feature or function that enables an individual to use a mobile electronic device without using either hand, except to activate, deactivate, or initiate the feature or function with a single touch or single swipe.(d)(I) "Mobile electronic device" means a handheld or portable electronic device capable of providing voice communication between two or more persons, amusement, or the wireless transfer of data.(II) "Mobile electronic device" does not include: (A) A radio, citizens band radio, or citizens band radio hybrid;(B) A commercial two-way radio communication device or its functional equivalent;(C) A subscription-based emergency communication device;(D) A prescribed medical device;(E) An amateur or ham radio device; or(F) Systems that are designed for and installed within the vehicle's electronics, such as an in-vehicle security, navigation, communications, or remote diagnostics system.(e) "Operating a motor vehicle" means driving a motor vehicle on a public highway. "Operating a motor vehicle" does not include maintaining the instruments of control of a motor vehicle while the motor vehicle is at rest in a shoulder lane or lawfully parked.(f) "Use" or "using" means: (I) Physically holding a mobile electronic device in the driver's hand or pinning a mobile electronic device to a driver's ear to conduct voice-based communication; except that an individual may use a speaker or other listening device that is built into protective headgear or a device or portion of a device that only covers all or a portion of one ear and that is connected to a wireless, handheld telephone as provided in section 42-4-1411;(II) Watching a video or movie on a mobile electronic device, other than watching data related to the navigation of the motor vehicle; or(III) Writing, sending, or reading text-based communication, including a text message, instant message, E-mail, or internet data, on a mobile electronic device; except that text-based communication does not include:(A) A voice-based communication that is automatically converted by the mobile electronic device to be sent as a message in written form; or(B) Communication concerning the navigation of a motor vehicle.(2) Except as specified in subsection (3) of this section, an individual shall not use a mobile electronic device while operating a motor vehicle.(3) It is not a violation of subsection (2) of this section to use a mobile electronic device:(a) To contact a public safety entity;(c) When an employee or contractor of a utility is acting within the scope of the employee's or contractor's duties when responding to a utility emergency;(d) When an employee or contractor of a city or county is acting within the scope of the employee's or contractor's duties as a code enforcement officer or animal protection officer; or(e) During the performance of a first responder's official duties.(4)(a) Except as provided in subsection (4)(b) of this section, an individual who violates this section commits a class A traffic infraction, and the court shall assess a penalty as follows:(I) A fine of seventy-five dollars and a surcharge of ten dollars for the first offense within the immediately preceding twenty-four months;(II) A fine of one hundred fifty dollars and a surcharge of ten dollars for the second offense within the immediately preceding twenty-four months; or(III) A fine of two hundred fifty dollars and a surcharge of ten dollars for the third or subsequent offense within the immediately preceding twenty-four months.(b)(I) An individual charged with violating subsection (2) of this section shall not be convicted if the individual:(A) Produces a hands-free accessory or proof of purchase of a Hands-free accessory; and(B) Affirms under penalty of perjury that the individual has not previously had a charge dismissed under this subsection (4)(b).(II) The court clerk may dismiss the charge if the clerk verifies that the individual has complied with both subsections (4)(b)(I)(A) and (4)(b)(I)(B) of this section.(c) If the individual's actions are the proximate cause of bodily injury to another, the individual commits a class 1 misdemeanor traffic offense and shall be punished as provided in section 42-4-1701 (3)(a)(II).(d) If the individual's actions are the proximate cause of death to another, the individual commits a class 1 misdemeanor traffic offense and shall be punished as provided in section 42-4-1701 (3)(a)(II).(5) This section does not apply to an individual with a commercial driver's license who is operating a commercial vehicle.(6) An individual operating a motor vehicle shall not be cited for a violation of subsection (2) of this section unless a law enforcement officer saw the individual use a mobile electronic device in a manner that caused the individual 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 section 42-4-1402.(7) This section does not authorize the seizure and forfeiture of a Mobile electronic device, unless otherwise provided by law.Amended by 2024 Ch. 431,§ 1, eff. 1/1/2025, app. to conduct occurring on or after 1/1/2025.Amended by 2017 Ch. 279, § 1, eff. 6/1/2017.L. 2005: Entire section added, p. 267, § 1, effective August 8. L. 2009: Entire section amended, (HB 09 -1 09 4), ch. 375, p. 2043, § 1, effective December 1. L. 2017: (2), (3), (5), and (6)(b) amended and (5.5) added, (SB 17-027), ch. 279, p. 1523, § 1, effective June 1.2024 Ch. 431, was passed without a safety clause. See Colo. Const. art. V, § 1(3).This section is set out more than once due to postponed, multiple, or conflicting amendments.