Keep Your Eyes on the Road, Your Hands Upon the Wheel

I blogged here about a new law, that prohibits texting while driving effective December 1, 2009. Texting while driving is an infraction, a non-criminal violation of the law, punishable by a $100 fine and costs of court. As one blog-reader noted, there are significant questions about how law enforcement officers will enforce the new law, given that it is permissible to enter letters or numbers into a mobile device for purposes other than texting, such as to place a telephone call or obtain driving directions.  The reader suggested that perhaps the law was designed to cause drivers to “think twice” before texting while driving. Maybe so. But it remains to be seen whether the measure will reduce the practice.

And there is cause for concern if it does not. A 2008 report by the National Highway Transportation Safety Administration (NHTSA) summarizing studies of driver distraction notes that the auxiliary functions of cell phones, namely text messaging, downloading of audio and video, and gaming, are being performed largely “by drivers without fully-developed driving skills.” As a result, the report predicts a “synergistic acceleration” in the resulting safety problem.

It is worth noting that North Carolina, along with many other states, has done little to address the hazards associated with the traditional use of cell phones – placing and receiving telephone calls.  While minors and school bus drivers are banned from using mobile phones while driving, subject to limited exceptions, no other restrictions apply to cell phone use by adults. This is true despite the fact that studies have shown a fourfold increase in the risk of serious crash involvement among drivers using a phone at the time of a collision.

So, what if the worst happens? While typing a text message, a driver crosses the center-line of a highway, hits another car head-on, and kills the driver of that car. What offense has the texting driver committed? Involuntary manslaughter, a Class F felony? Or is the more appropriate charge misdemeanor death by vehicle, a Class 1 misdemeanor?

Reckless driving can arise to the level of culpable negligence for purposes of an involuntary manslaughter conviction even in the absence of impairment by alcohol or drugs. See State v. Wade, 161 N.C. App. 686 (2003). But does texting while driving demonstrate the thoughtless disregard of consequences or heedless indifference to the safety of others necessary to constitute culpable negligence? It seems unlikely that a North Carolina court would find that texting while driving rises to this level of culpability, particularly given that the offense results in no license or insurance points and is not negligence or contributory negligence per se in an action for damages arising out of the operation of a vehicle.

Unquestionably, though, the texting driver has committed the offense of misdemeanor death by vehicle by violating a motor vehicle law and thereby causing the death of another person.

The New York Times reported recently about a new Utah law that punishes a texting or emailing driver who drives recklessly and causes a fatality as severely as a person who drives while impaired and causes a fatality. The law was enacted after a college student who was text messaging his girlfriend while driving his SUV to work crossed the center line of the highway and hit a sedan traveling in the opposite direction, setting off a chain of events that ended in a crash that killed both occupants of the sedan, who were scientists on their way to work.

In the Utah case, the investigating officer subpoenaed phone records that showed that the student and his girlfriend had sent 11 text messages to one another in the 30 minutes before the crash. Investigators concluded the student sent his last text when he crossed the center line.

According to the Times, Alaska is the only other state to “take[] a similarly tough approach to electronic distraction.” There, too, legislation resulted from a fatal accident.

It remains to be seen whether North Carolina’s new texting ban will avert such tragedy.

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