You are driving when your phone buzzes with an alert. You take your eyes off the road, ascertain the location of the phone, grab it and look at it to determine the source of the vibration. Is it a text, an email, what? If you are security minded, in order to read the message, you swipe your finger over the fingerprint reader or enter a password or a pass code or trace a shape with your finger. Once you have gained access to the phone, you look at the device again to read the contents of the message. Now, not only are you not looking at the road but you have removed at least one hand from the wheel, but maybe both hands. Did you have to hold the phone in one hand and use your other hand to enter the access code? Did you have to steady the steering wheel with your knee? Also, you are no longer thinking of the road conditions and traffic because you are paying attention to gaining access to the message, reading the message and possibly, although it is against the law, typing back a response. Well the sender is waiting for a response aren’t they? While all this is happening, you are moving through space at what speed? Are you on the interstate going 70 mph, or on a country road doing 50, or in city traffic, creeping along? Have you had close calls before where your car drifted over the center line while you, just for a second, glanced at the phone? Or maybe your car veered towards the shoulder. Or maybe you slammed on your brake and just avoided hitting the bumper of the car in front of you. Lucky. Whew. Lucky until you aren’t. What happens when you hit a person or another car?
As an admitted distracted driver and a geeky criminal defense lawyer, I wondered what criminal responsibility would lie with someone who kills another person as a result of texting. Death could result from plowing into a pedestrian, a cyclist or a moped/scooter driver. There could be collision between your car and another car. Hey, that car came out of nowhere! What about the death of a passenger in your own car? Many possibilities.
I expect that over time texting while driving will be punished as DUI/DWI is now. The police will use a Textalyzer1 to analyze cell phones at a crash site to determine whether the driver was distracted because of recent use of a mobile device.
What are potential punishments?
At the top of the punishment pyramid is Second Degree Murder. Here, implied malice is shown if the texter had the intent to perform the act of driving in such a reckless manner as reflects knowledge that injury or death would likely result, thus evidencing depravity of mind.2 This mental state could be proven by knowledge imparted upon the driver from any previous violation(s) of the law. For example, if you got a ticket for driving while texting and as part of your punishment, you were required to participate in an educational program dealing with the dangerous and potentially fatal results of texting and driving and signed an advisement to that effect, you would be on notice. So when you subsequently texted while driving, in a trial, prosecutor could offer as evidence that advisement to prove that when you continued to text while driving, you were doing so with a conscious disregard that injury or death would result from any resulting collision when you were driving in an inherently dangerous manner.
A much easier felony to prove yet still serious is the common law offense of Involuntary Manslaughter: the killing of another person by an unlawful act that does not amount to a felony and is not ordinarily dangerous to life or by a culpably negligent act. Texting while driving, a violation of G.S. 20-137.4(A), should constitute a culpably negligent act because texting is an intentional violation of a statute which is intended to protect human life. A person acts in a culpably negligent way if he knows the probable consequences of the action but acts intentionally, recklessly or wantonly indifferent to the results.
Finally, misdemeanor Death by Vehicle3 occurs when an unintentional death results from the violation of a law relating to the operation, use of a vehicle or regarding the regulation of traffic and death proximately results from this violation. Death by Motor Vehicle applies when the circumstances do not establish the culpable negligence.
This blog only touches on possible criminal ramifications. There would be a civil suit for money as well as the emotional trauma inflicted upon you, your loved ones and the family of the victim. Most importantly, you would have caused the tragic extinguishment of a person’s existence prematurely. All because you needed to look at that text.
I am putting my phone under my seat or in the trunk, what about you?
_______________________
1.Cellebrite a company focused on the creation of data extraction, transfer and analysis devices for cell phones and mobile devices, is developing the textanalyzer.
2.State v. McAllister, 138 N.C. App. 252 (2000)
3.G.S. 20-141.4(a2)
DEATH BY TEXT
