As a career prosecutor for 19 years, I have had occasion to become very familiar with many parts of the Colorado Revised Statutes, and I have reviewed 09HB1094, which just passed the House today, and appears to be headed to the Senate. This bill's primary sponsors are Rep. Levy and Sen. Bacon, with Rep. Fischer, Hullingshorst, Kefalas as co-sponsors.

This bill prohibits any driver over 18 years of age (with a few exceptions) from using a cell phone unless the driver is using a "hands-free accessory", which is defined by the bill as follows:

SECTION 1. 42-4-239, Colorado Revised Statutes, is amended to read:
42-4-239. Misuse of a wireless telephone - definitions - penalty - preemption. (1) As used in this section, unless the context otherwise requires:
. . . .(c) "HANDS-FREE ACCESSORY" MEANS A BUILT-IN DASHBOARD SPEAKER, SPEAKER PHONE, HEADSET, OR EAR PIECE USED WITH A WIRELESS TELEPHONE.

However, this bill would create an irreconcilable internal conflict with the pre-existing current law, contained in Chapter 42 of the CRS, that regulates Vehicles & Traffic, Article 4 Regulation of Vehicles and Traffic, Part 14 Other Offenses, contains section 11411, contains a law passed in 1994 (SB94-1), which states as follows:

§ 42-4-1411. Use of earphones while driving
(1)(a) No person shall operate a motor vehicle while wearing earphones.
(b) For purposes of this subsection (1), "earphones" includes any headset, radio, tape player, or other similar device which provides the listener with radio programs, music, or other recorded information through a device attached to the head and which covers all of or a portion of the ears. "Earphones" does not include speakers or other listening devices which are built into protective headgear.
(2) Any person who violates this section commits a class B traffic infraction.

As you can see, 09HB1049 mandates drivers use headset or ear pieces that are prohibited by CRS Sect. 42-4-1411(1)(a). This would create an internal conflict in the law would be impossible to harmonize. If the State Legislature wants drivers to use earpieces with their cellphones, they would need to simultaneously amend CRS 42-4-1411 to make such behavior legal.

It would appear that the legislative staff at the state capitol, and all of the sponsors, missed this important pre-existing law in drafting 09HB1049. Passing 09HB1049, as it is currently written, would simply create moreheadaches than it would solve.

This is why I have a favorite saying that will probably be engraved on my tombstone:

" I am just a soldier fighting the war in the trenches; the Generals never come down to ask me how the war should be fought, but if they do - I have a list."