concurring in the judgment only:
I concur in the judgment of the court but write separately to explain my reasons for not joining its opinion. In my view the court's attempt to distinguish "knowledge" as defined at section 42-2-138(4)(a), 11 C.R.S. (2000), from an objective, "reasonable man" standard is neither persuasive nor necessary. Because I consider it well settled that the legislature is not constitutionally precluded from punishing a regulatory offense like "Driving under restraint" as a strict liability offense, much less as an offense based on the awareness of a reasonable person, I am reluctant to join an opinion that I believe permits a contrary inference.
Although "Driving under restraint" ostensibly requires the defendant's "knowledge" that his privilege to drive is under restraint, in this context the General Assembly has expressly defined "knowledge" in terms more like those typically used to describe negli-genee. Rather than knowledge of the restraint itself, knowledge of cireumstances from which a reasonable person would be aware of the restraint is enough. + Unlike subjective culpable mental states requiring a conscious awareness by the defendant, an objective standard is characterized by his failure to be aware of something that an ordinary, reasonable person would be aware of under the same circumstances. While the court's characterization of the statutory lan*1041guage as combining both subjective and objective components is undoubtedly accurate, I find it to be constitutionally insignificant. Requiring knowledge of surrounding cireum-stances from which a reasonable person would draw a particular inference or be aware of a consequential fact does not make the standard any less objective; whether express or implied, it is essential to the description of an objective standard. Ultimately, guilt is predicated on the fact that a reasonable person would be aware of a restraint on the defendant's driving privilege, whether the defendant is aware of it or not.
In my view, however, it is also wholly unnecessary to distinguish this requirement from an objective standard because well-established principles of due process require no more. Violations of the highly regulated privilege to drive are quintessential public safety offenses rather than legislative codifications of common-law crimes. As long as they include a voluntary act, offenses may be created by the General Assembly requiring no "culpable mental state" at all. People v. Wilhelm, 676 P.2d 702, 706 (Colo.1984); People v. Rostad, 669 P.2d 126, 129 (Colo.1983). Only with regard to so-called common-law crimes has this proposition been limited. See Bollier v. People, 635 P.2d 543, 546 (Colo.1981) (requiring a mental state where the proscribed conduct had its origins in common law and the statute was not enacted pursuant to the state's regulatory powers); see also City of Englewood v. Hammes, 671 P.2d 947, 953 (Colo.1983) ("obstructing a police officer" merely codified the common-law erime and as such required a mens rea). Although a constitutional basis for limiting legislative prerogatives in this way is far from clear, the question whether these holdings confound a principle of statutory construction, see Morissette v. United States, 342 U.S. 246, 249, 72 S.Ct. 240, 96 L.Ed. 288 (1952); see also People v. Bridges, 620 P.2d 1, 3 (Colo.1980)(holding that where a statute is silent as to mens rea but codifies a common-law crime that had a specific mens rea, the courts will impute . the necessary culpability requirement), with some notion of substantive due process, long abandoned as unduly infringing on the exercise of police powers, can wait for another day. In "Driving under restraint," the General Assembly has neither modified a common-law crime nor simply omitted a culpable mental state. It has plainly and expressly created a regulatory offense based on the combination of a voluntary act and deviation from an objective standard of care.
For the same reasons, People v. Johnson, 193 Colo. 199, 564 P.2d 116 (1977), imposes no limitations on the regulatory offense of "Driving under restraint." Because the authorities relied upon in Johnson merely construed statutes in their respective jurisdictions, see Von Sprecken v. State, 40 Ga.App. 222, 28 S.E.2d 341, 342-43 (1943) (interpreting the term "knowing" in Georgia's theft by receiving statute); Commonwealth v. Boris, 317 Mass. 309, 58 N.E.2d 8, 12-13 (1944) (interpreting the statutory phrase "knowing it tq have been stolen or embezzled"), and Johnson's overbreadth holding failed to suggest infringement on any constitutionally protected conduct, see Hoffman Estates v. Flipside, 455 U.S. 489, 494-95, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) (stating that a facial overbreadth challenge must fail unless the enactment reaches a substantial amount of constitutionally protected conduct); see also People v. Shepard, 983 P.2d 1, 3 (Colo.1999), the actual basis for its holding is less than clear. Nevertheless, it clearly applied to the codification of a common-law crime.
The special concurrence in Johnson, 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 proseription 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. Flipside, 455 U.S. at 498, 102 S.Ct. 1186; 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. Flipside, 455 U.S. at 499, 102 S.Ct. 1186. Where, however, the pro-seription 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 *1042been 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. Flipside, 455 U.S. at 495 n. 7, 102 S.Ct. 1186. 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, 102 S.Ct. 1186.
I would make the rule absolute simply because "Driving under restraint" is manifestly not a common-law erime and because the statute describes at least some cireum-stances in which persons of ordinary intelligence are adequately put on notice that they are prohibited from driving.