Legal Corner: Understanding AVIS authorizations and restrictions

Automated Vehicle Identification Systems, also referred to as AVIS, have been used by municipalities for several decades to help manage traffic violations — typically speeding and running red lights. These days, the use of AVIS by municipalities is governed by an overlay of state and local laws. In the past several years, the Colorado General Assembly has modified the state statue on AVIS several times to broaden the use of AVIS for local governments and to allow the state to begin more widely using AVIS, along with other changes. With these developments, many more municipalities have begun to utilize AVIS in their communities for the first time. As with many new undertakings, this may have people asking questions to better understand the legal framework for using AVIS.

Home rule history

After several home rule municipalities began using AVIS in the 1990s, the Colorado General Assembly passed legislation in 1997 to regulate the use of this technology by local governments. Some of these municipalities challenged the state’s authority to put restrictions on their use of AVIS based on home rule authority under the Colorado Constitution. In 2002, in City of Commerce City v. State, 40 P.3d 1273, the Colorado Supreme Court held that the regulation of AVIS to enforce traffic laws is a matter of mixed concern, meaning that local laws cannot conflict with state regulations, and the state could regulate home rule use of AVIS. As a result, the AVIS state statute is generally seen as a restrictive law when it comes to home rule municipalities.

Statutory municipalities and AVIS

Unlike home rule municipalities that have constitutional authority to act in certain areas, statutory municipalities, like the state and counties, are creatures of statute meaning that they must be given statutory authorization to be able to act. For this reason, the state AVIS statute can be viewed as an authorizing law for statutory municipalities. In the absence of statutory authorization to use AVIS, it is less clear whether a statutory municipality has authority to do so, unless it were to fall under some sort of plenary power, such as police powers.

Current state law

Colorado’s AVIS statute, C.R.S. § 42-4-110.5, establishes where AVIS can be utilized; the process for implementing AVIS, including ordinance requirements, supporting data for AVIS corridors, notice, and coordination with the state when utilizing AVIS on a state highway; the enforcement of violations, including penalties; and restrictions on AVIS data usage. Some of these provisions are mandates, such as publicly announcing the implementation of AVIS on the government’s website for at least 30 days prior to use, posting street signage identifying an AVIS ahead, and illustrating the need for an AVIS corridor through recent data showing incidents of crashes, speeding, reckless driving, or community complaints.

Other provisions in the statute, however, are optional, including conducting an extended public information campaign and issuing warnings for the first 30 days after an AVIS is deployed. While a government entity cannot issue a notice of violation within the first 30 days of using an AVIS, it is optional as to whether the entity mails out warnings during that time period.

Excessive speeding violations

One long-standing provision in the AVIS statute has been and continues to be a source of confusion for many government entities. C.R.S. § 42-4-110.5(1.5) provides that “[n]othing in this section applies to a violation detected by an [AVIS] for driving twenty-five miles per hour or more in excess of the reasonable and prudent speed . . . .” While it has been modified slightly from time to time, this subsection was first added in 1999. When adopted, this provision was intended to exclude speeding violations of 25mph or more over the speed limit from the statutory requirements and limitations concerning AVIS. In other words, it aimed to provide local governments with greater authority and latitude to respond to egregious speeding.

However, with the increase in authority for the state and local governments to use AVIS in the past few years, questions have arisen for entities that need statutory authority to act. The somewhat ambiguous nature of the language has caused confusion about whether C.R.S. § 42-4-110.5(1.5) operates simply to remove restrictions on enforcing these high-speed violations or whether this provision eliminates the ability of the state, counties, and statutory municipalities to utilize AVIS to enforce such violations altogether.

CML interprets C.R.S. § 42-4-110.5(1.5) to exclude speeding violations of 25mph or more over the speed limit from the other limitations in C.R.S. § 42-4-110.5 for all local governments, including statutory municipalities. The technology should be available to provide an alternate mechanism to catch egregious offenders, without requiring a peace officer to physically catch a speeder. However, the different interpretations of this language highlight the potential need for clarifying legislation. Regardless, when implementing AVIS, it is important for municipalities to work with their municipal attorney to ensure compliance with all relevant state and local requirements.

This column is not intended and should not be taken as legal advice. Municipal officials are always encouraged to consult with their own attorneys.