What happens when a driver kills someone while fiddling with a cellphone? Often, not much

Posted with permission from Fairwarning.org:

The victims include a Bible college student in Iowa who was bicycling home from work, a 13-year-old Michigan boy riding in his older sister’s car and a Minnesota school bus driver picking up the morning newspaper in front of his home.

All were killed in recent years by distracted drivers who had been texting or looking at their GPS. Yet none of the drivers responsible for those deaths spent more than a few days behind bars.

Although there are no national statistics on the results of prosecutions brought against distracted drivers who kill or severely injure someone, light punishment appears to be the norm. An informal review by FairWarning of prosecutions of distracted drivers — cases gleaned from news reports over the last five years that involved more than 100 deaths overall –- found that few were sentenced to serve for more than a month or two, or given fines of more than $1,000.

To combat distracted driving deaths, the National Highway Traffic Safety Administration last May published a 24-page guide outlining the best methods to win convictions. It was prepared by a team of eight prosecutors, police officers and traffic safety specialists from across the nation.

“Sending or reading a text message can take the driver’s eyes off the road for an average of 4.6 seconds,” the publication said. “At 55 miles per hour …. the vehicle will travel the length of a football field without any visual guidance.”

Safety advocates and researchers say tougher penalties alone aren’t likely to get drivers to put down their phones. But as with drunk driving a generation ago, they say, stiffer penalties could reduce the reckless behavior, if the tougher punishment is combined with education programs, peer pressure and technology that can disable motorists’ wireless devices while they are driving.

For example, Christopher Kutz, a University of California, Berkeley, law professor, thinks that ”very well-publicized homicide prosecutions” could have a strong deterrent effect. Yet he also believes that technology to prevent drivers from using their smartphones or other devices is essential. “There’s a particular problem with distracted driving — the design of the device is to encourage distraction,” he said. “They’re built with addiction as a feature, not a bug.”

“Part of the challenge,” said Jay Winsten, associate dean of the Harvard School of Public Health, “is that there is no stigma connected or associated with a distracted driving offense. There’s no shame.”

He added: “I’m at a reception or cocktail party and someone asks, what are you working on and I say distracted driving and they’re more likely than not to say, ‘Yeah, I’m probably one of the worst offenders.'”

Public attitudes tended to be similarly blasé toward drunk driving until the 1980s. “People would joke about how drunk they were when driving,” Winsten recalled. But then the newly formed Mothers Against Drunk Driving stepped in and drew widespread attention to the deadly problem. By swaying public opinion, MADD helped win tougher legal sanctions, higher drinking ages in some states and highlighted such alternatives as designated drivers.

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Nearly one-third of drivers between the ages of 18 and 64 read or send text or email messages while at the wheel, according to the Centers for Disease Control and Prevention. Distracted driving causes almost 3,500 deaths and 400,000 injuries a year, the National Highway Traffic Safety Administration says. In 2015, the agency estimated that nearly 500 deaths involved the use of cellphones, but experts consider that figure very low since the federal database relies on often incomplete information in police reports. Along with using wireless devices, other distractions – such as eating while driving — also figure in some of these crashes.

“This is so prevalent and so very dangerous,” said Amy J. Freedheim, a prosecutor in Seattle for King County, Wash., who co-authored the NHTSA prosecution guide. “We’ve got to address it — we can’t afford not to.”

“All it takes is just a moment of drift and you’ve altered your life and you’ve ended somebody else’s life.”

Jay Winsten, associate dean of the Harvard School of Public Health, said part of the challenge in dealing with distracted driving is that “there’s no shame” associated with the offense.

The NHTSA guide encourages police to consider using specialized evidence bags for cellphones to preserve their data and reduce the chance that the information would be lost due to outside interference or static electricity.

It also advises police to demand electronic records from wireless providers, who typically won’t release them without a subpoena, and get statements from witnesses and the suspect driver. “The early interview may reduce the opportunity to fabricate or conspire with others,” the manual noted.

Yet no matter how thorough the criminal investigation, experts say that distracted driving is a far tougher nut to crack than drunk driving — and not just because it is more difficult to prove a motorist was texting at the moment of a crash than to demonstrate, with the black-and-white results of a field sobriety test and breathalyzer or blood test, that a driver was intoxicated. Only in the rare case of an eyewitness report or admission by a motorist will police know that a cellphone was involved.

For one thing, more people use wireless devices day-in and day-out, often minute-by-minute. Tweeting, texting and posting are hard habits to break — even for someone in the driver seat.

Winning tougher sanctions also requires some legislators, litigators, judges and juries to ignore their own behavior. As Harvard’s Winsten put it: “There but for the grace of God go I – am I really prepared to send someone to jail?”

Freedheim conceded that tough sanctions will remain difficult to win unless public perception changes.

Most people “are getting the message that texting and driving is injurious,” she said. “But everybody thinks they are the safe person.”

In a particularly horrific case, manslaughter and other charges are pending against Jack Dillon Young, 21. Police say he was texting and on prescription drugs last March 29 when he drove his pickup truck across the center line of a rural road in South Texas and smashed into a church bus, killing 13 people. He has pleaded not guilty.

Most prosecutions that lead to prison sentences, the FairWarning review showed, involved at least one additional illegal act. Those included drinking, drug-taking or the use of a hand-held phone while driving a commercial truck, a practice outlawed by federal transportation authorities.

Perhaps the stiffest sentence in recent years was meted out to Frank Rychtik. The Wisconsin dump truck driver pleaded no contest to killing Minnesota motorist Jason Songer, 29, and seriously injuring two others in 2014. He is serving 16 years in prison.

Rychtik had been drinking the previous evening and his blood alcohol level remained above .04 when he slammed into several vehicles that had come to a halt ahead of him on Interstate 90 near La Crosse, Wis. At the time, he acknowledged, he was looking down at a Facebook post and failed to notice the stoppage.

“Life can change in that second it takes you to look at your phone,” he reflected in a prison interview with Fox 9 News in Minneapolis early last year.

“I just wish I could go back and re-wake up that morning and not get into that truck,” he said. “That text message, that Facebook post, all of that can wait.”

In New Jersey in 2013, a high school sports star, Sam Oltmans, received a five-year prison sentence in connection with a crash that killed a 61-year-old political activist named Lauren O’Neil.

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Authorities said Sam Oltmans, who was 17 at the time of the crash, was at a party before driving off. They said Oltmans later crossed a double yellow line and struck O’Neil’s vehicle head-on while he was talking on his cellphone and sending text messages.

In sentencing the teen, according to local news reports, Superior Court Judge Robert Reed called the case a tragedy and indicated that he hoped the tough sentence would serve as a warning to others.

“For God’s sake, stop it, lest you stand where Sam Oltmans stands today,” the judge said in remarks directed toward young people.

Today, Oltmans is out of prison and is attending Rutgers University, where he plays on the lacrosse team. He also speaks to school groups about drinking, texting and driving.

“My message to you: Be responsible,” he was quoted as telling students at Quinnipiac College. “Don’t make the same mistakes that I did. They’ll stay with you for the rest of your life.”

A case more typical of those reviewed by FairWarning is the one against Drew Fleming of Hudson, Wis. Authorities said Fleming was texting while driving through an eastern Minnesota highway intersection in February 2016 when he lost control of his Saab, careened off an embankment and slammed into Megan Goeltz’s Ford Fusion. Goeltz, who was 22, pregnant and the mother of a toddler, was killed.

But Fleming, then 20, was charged with a misdemeanor reckless driving charge. Still awaiting trial, he faces a maximum sentence of a year in jail.

Forty-three states and Washington, D.C., have text messaging bans for all drivers, and 15 states and the District of Columbia bar all handheld use of phones. But, by and large, the penalties are light.

Amy J. Freedheim, a prosecutor in Seattle for King County, Wash., in front of photos of victims in vehicular homicide cases that she has prosecuted. Freedheim said distracted driving “is so prevalent and so very dangerous” and must be addressed.

In Minnesota, for example, drivers caught texting face a $50 fine and $225 for subsequent offenses. When deaths or seriously injuries occur, a distracted driver faces at most a gross misdemeanor reckless driving charge unless engaged in an additional offense such as drunk driving.

That outrages the victim’s father, Tom Goeltz, who has worked for three decades as a safety consultant in Minneapolis.

“When they say, ‘Well, he has to be doing something else like speeding, or being drunk or high on illegal drugs,’ I mean those things by themselves they can get a felony charge for,” Goeltz said in an interview. “You can get a felony charge for cutting down a darn tree on public land. We’re not protecting the public.”

In his job with a risk management firm, Goeltz discusses safety with business owners and employees, and he has added the topic of distracted driving to his lectures.

“I work with nuclear power plants and linemen that put up high tension wires with big utilities, and gas line employees,” Goeltz said. “And the first thing I tell them if I’m in a safety meeting is the most hazardous thing you’re going to do today is not at work, it’s driving back and forth to work.”

“Last year, 5,000 people died in construction sites and general industry and plants, but 40,000 died driving on our roads back and forth to work, school or wherever,” he said. “But we focus so much less on it.”

Some analysts say that fostering peer pressure — particularly among young drivers, who are most at peril – is crucial for putting the brakes on distracted driving.

For drivers who “are very hooked” on their smartphones, “there is no punishment stiff enough to change that behavior,” said Ramsay Brown, co-founder and chief operations officer of Dopamine Labs in Venice, Calif., an artificial intelligence software firm. “You need to find some way to make it cool to get angry at your friend when he’s texting and driving. You need to make distracted driving wickedly unsexy.”

Paul Feldman can be reached at paul.feldman@fairwarning.org.

About FairWarning

This story was reported by FairWarning (www.fairwarning.org), a nonprofit news organization based in Pasadena, Calif., that focuses on public health, safety and environmental issues.