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People v. Ellison12/4/2000
ohnson, however, does identify a potential due process concern with crimes containing no culpable mental state. See Johnson, 193 Colo. at 201-02, 564 P.2d at 118-19 (Erickson, J., specially concurring). A legislative proscription may be void for vagueness if it is too indefinite to give a person of ordinary intelligence a reasonable opportunity to know what is prohibited or if it fails to provide sufficiently explicit standards to avoid arbitrary and discriminatory enforcement. Flip-side, 455 U.S. at 498; see also People v. West 724 P.2d 623, 626 (Colo. 1986); City of Englewood, 671 P.2d at 951. In such a case, a scienter requirement may mitigate a law's vagueness. Flip-side, 455 U.S. at 499. Where, however, the proscription at issue is merely to refrain from engaging in a highly regulated and dangerous activity without taking reasonable care to insure that one's privilege to do so has not been denied or revoked as the result of prior violations, there can be no serious question about an ordinary person's ability to know the prohibited conduct. Furthermore, when a legislative proscription does not threaten to be overbroad by infringing on First Amendment conduct, vagueness challenges are limited to consideration of the facts of the case at hand. Flip-side, 455 U.S. at 495 n.7. The district court's order declaring a portion of the statute facially unconstitutional therefore could be justified on vagueness grounds only if there could be no application in which it would not be unconstitutionally vague. Id. at 495.
I would make the rule absolute simply because "Driving under restraint" is manifestly not a common-law crime and because the statute describes at least some circumstances in which persons of ordinary intelligence are adequately put on notice that they are prohibited from driving.
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