Is it legal to wear earphones while cycling in Colorado?

A recent cycling organization newsletter featured a“Bike Law Q&A,” wherein the author addressed the legality of wearing earphones while riding your bike: 

I personally agree with the author’s statement that, “while Colorado Law prohibits the operator of a motor vehicle from wearing earphones while driving, the law does not apply to bicyclists.  That’s because the statute specifically refers to ‘motor vehicle’ rather than ‘vehicle.’” 

However based on an experience I had in Denver Traffic Court last summer, I want to share with Colorado cyclists the reality that some City Attorneys and Judges may see it differently…

Colorado law prohibits the operator of a motor vehicle from wearing earphones while driving:

§ 42-4-1411. Use of earphones while driving

Write here...

(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.

Well what exactly is a “motor vehicle,” and is a cyclist within that definition?

42-1-102. Definitions

As used in articles 1 to 4 of this title, unless the context otherwise requires:

(58) “Motor vehicle” means any self-propelled vehicle that is designed primarily for travel on the public highways and that is generally and commonly used to transport persons and property over the public highways or a low-speed electric vehicle; except that the term does not include low-power scooters, wheelchairs, or vehicles moved solely by human power.

Cyclists should therefore be considered vehicles, moved solely by human power, but not “motor vehicles.”[1]

It would seem to follow then, that a cyclist could not be cited or charged pursuant to section CRS 42-4-1411 for wearing earphones under Colorado statute, because a cyclist is not a motor vehicle and the statute only addresses motor vehicles ….

Right?   

Last summer I had the opportunity to make this very argument in Denver Traffic Court.  The City Attorney filed a motion to add additional charges, one of which was a charge for wearing earphones.

At our motions hearing, I argued that this citation could not apply to a cyclist because he is not a “motor vehicle.”  If the Colorado Legislature had intended CRS 42-4-1411 to encompass cyclists, low-power scooters or similar, it would have used “vehicle” instead of “motor vehicle.”

The Denver City Attorney’s position was that CRS 42-4-1412(1) trumped the definition of “motor vehicle” in CRS 41-1-102, making it illegal for cyclists to wear earphones.  

CRS 42-4-1412(1) states:

Every person riding a bicycle or electrical assisted bicycle shall have all of the rights and duties applicable to the driver of any other vehicle under this article, except as to special regulations in this article and except as to those provisions which by their nature can have no application.

To illustrate, I include excerpts from the transcript of our hearing:

MS. HOTTMAN:  With regard to the charges that the City proposes, I’d like to start with the headphones charge. As Your Honor pointed out earlier, that statute applies to motor vehicles. Pursuant to the statute, it says, “No person shall operate a motor vehicle while wearing headphones”. When you look at the definition section, 42-1-102, it specifically defines motor vehicles. And it specifically excludes low-powered scooters, wheelchairs, or vehicles move solely by human power, which by definition includes bicycles. On its face, that statute cannot apply to a bicyclist.

THE COURT: Okay. Thank you. Any response?

CITY ATTORNEY: Your Honor, if I may respond. As to the headphones charge, Your Honor, I understand the Defense’s argument that it only applies to motor vehicles. That argument, same argument can be made for all the statutes under the motor vehicle code. The Legislature has seen fit to add 42-4-1412 for that specific purpose of saying bicycles are to be treated exactly as cars for this section. That is the purpose of adding those. And although it states motor vehicles under the use of earphones while driving, 42-4-1411, it still applies. It is still under the sub-—under the section of bicycles being applied to cars.

The Traffic Court Judge subsequently allowed the addition of the earphone charge. 

Based on these inconsistencies in interpretation among city attorneys, private attorneys, and judges, Colorado cyclists should be prepared to face legal repercussions if they choose to wear earphones while riding.  This issue is most likely to arise in an accident between a cyclist and a motorist, when the police investigate the facts surrounding the accident and discover that the cyclist may have been wearing earphones.  Then it becomes an issue of apportioning fault among the parties, i.e. was the cyclist contributorily negligent by wearing them because he/she could not hear the car approaching from behind, for example. 

This article also appeared on 303cycling.com on January 22, 2014