Vagueness in Colorado Driving Laws

Publication year1978
7 Colo.Law. 550
Colorado Lawyer

1978, April, Pg. 550. Vagueness In Colorado Driving Laws


Vol. 7, No. 4, Pg. 550

Vagueness In Colorado Driving Laws

by Philip R. Cockerille

[Please see hardcopy for image]

Philip R. Cockerille, Denver, is a sole practitioner.


For years thousands of drivers have been frustrated by citations for careless driving, reckless driving, or driving at a speed which is unreasonable under existing conditions. The driver may not know what particular acts the officer thought were offensive. The penalties are usually small---a fine of less than $50 and four to eight points on the driving record. The temptation is great for the driver to bargain for a lesser penalty or merely accept the full penalty. Before pleading guilty or going to trial, however, the driver or the lawyer who represents the driver should consider a challenge to the constitutionality of the statute or ordinance involved.

The statutes and ordinances typically are phrased in the terms "reasonable," "due care," "prudent," or "under the circumstances." This article discusses whether the statutes and ordinances are unconstitutionally vague under the due process clause of the Fourteenth Amendment to the U.S. Constitution and the similar clause in Article II section 25 of the Colorado Constitution.

This discussion concerns the use of vagueness as a shield to prosecution. The defense should be aware that vagueness may also be used as a sword by arguing that the defendant was driving reasonably under the existing conditions. Such a defense often turns into a contest of the arresting officer's word against the defendant's, however, so that it seems that the criminal process would be improved more by eliminating vague charges and requiring specific ones where the officer must specify the illegal acts and prove them.


The U.S. Supreme Court has interpreted the due process clause to require fair notice of proscribed conduct and reasonably clear guidelines for law enforcement officials and triers of fact. Vagrancy ordinances, which permitted arrest and prosecution for merely being on the street, failed to meet this test.(fn1) A wartime prohibition by Congress against any "unjust or unreasonable" change in prices was vague for failure to fix an ascertainable standard of guilt or adequately to inform the accused.(fn2) However, a provision in the Robinson-Patman Antitrust Act, which prohibited selling goods at unreasonably low prices for the purpose of destroying or eliminating competition, was not unconstitutionally vague where legislative history indicated that selling below cost without a business reason had long been an anti-trust


violation under the Clayton Act and cases interpreting that Act, and where a "predatory intent" was required.(fn3)

Vagueness is more serious when it chills First Amendment rights. Thus, a statute which prohibits contemptuous treatment of the American flag is void for vagueness because it could subject to prosecution any casual user of the flag.(fn4)

In general, the U.S. Supreme Court examines the statute for (1) notice to the public and (2) guidelines for enforcers, including court opinions which define the statutory language.


The Colorado Supreme Court has made several important decisions on vagueness in recent years. It follows the two tests of the U.S. Supreme Court. From its opinions, this additional rule seems to appear: it requires the most precise language available, considering available alternatives and whether a judicial definition can clarify the allegedly vague terms. Illegal acts must be defined precisely; less precision is allowed in defining the mens rea of a crime.

The Act of Illegal Driving

The court requires that the legislature or council define the regulated act with the greatest possible particularity. In Trail Ridge Ford, Inc. v. Colorado Dealer Licensing Board,(fn5) the court found that the word "unconscionable" in a section of a statute regulating auto dealers lacked the specificity required in criminal statutes and gave unconstitutional discretion to the Colorado Dealer Licensing Board which enforced the statute. Chief Justice Pringle wrote,

Penalties cannot be imposed for violations of a standard whose meaning is dependent upon surmise or conjecture or uncontrolled application by the Board imposing the penalty.

Where criminal or quasi-criminal sanctions are to be imposed, we think the threat of arbitrary enforcement of the law requires more specificity than is contained in subsection (3)(k) (unconscionable practice).(fn6)

The court noted that the dealer could have been charged under several other specific subsections for the act of lowering the odometer reading, so that action under...

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