Should we punish “driving while texting” like we punish DUIs? – AvvoStories

Joseph Tikalsky was crossing the street to retrieve his morning paper. But Susan Russo, a 47-year-old teacher, did not see him. She struck Tikalsky with her car, and Tikalsky was pronounced dead at the scene. Russo had put her head down to respond to a text on her cell phone. Tikalsky, a 79-year-old Minnesota school bus driver, had even worn a reflective vest that would make him visible to early morning drivers. It didn’t matter. Is the penalty appropriate? The charges against Russo included reckless driving and misuse of a wireless communication device, both misdemeanors. She pleaded guilty to both charges and, as part of her plea deal, had the misuse charge dropped. A district judge instructed Russo to educate others about the “epidemic” of texting while driving and added, “I would bet that everyone in this courtroom has looked away from the road while driving.” He sentenced the defendant to 40 hours of community service with Minnesotans for Safe Driving, two years of supervised probation, a $3,080 fine, and four days of jail time. Russo served two days in October 2016 and will serve the final two days in October 2017, reminders of the October 2015 day on which she struck and killed Tikalsky. Russo’s case, and many others like it, have prompted questions about appropriate penalties when a life is lost due to driving while texting. Driving under the influence is serious… In every state, driving with a blood alcohol concentration of 0.08 or higher is a crime, according to the Governors Highway Safety Association website. Harsh penalties can apply to even first-time offenders. But the laws themselves, along with the corresponding penalties, differ greatly from one state to another. Forty-two states allow law enforcement to confiscate a driver’s license if he/she fails a chemical test. All states have ignition interlock laws. Judges can require convicted drunk drivers to install interlocks that disable the engine if alcohol is detected on the driver’s breath. States are mandated by federal law to adopt open container and repeat offender laws or lose their transportation funding. In some states, alcohol exclusion laws allow insurance companies to deny payment for treatment of injuries sustained by drunk drivers. …but driving while texting is less so The Centers for Disease Control and Prevention reports that, every day, distracted drivers kill eight people and injure another 1,161. Texting is not the only distraction for drivers, but it’s certainly one of the more common: 31 percent of U.S. drivers ages 18 to 64 admitted to sending or reading a text while driving. Like DUI laws, distracted driving laws vary from state to state. Fourteen states prohibit all drivers from using a hand-held cell phone while driving. These are primary enforcement laws, meaning a police office may cite a driver for using a hand-held phone even when no other traffic violation has occurred. Thirty-eight states ban cell phone use by novice drivers, and 20 states prohibit it for school bus drivers. No state bans all cell phone use for all drivers. Forty-six states ban text messaging for all drivers, and all but five have primary enforcement. Of the four states that do not have an all-driver texting ban, two prohibit text messaging by novice drivers, and one restricts school bus drivers from texting. Forty-six states include at least one category for distraction on police crash report forms. Some states have preemption laws that prohibit local jurisdictions from enacting their own distracted driving bans. Comparing these laws with those for DUI, it’s clear the law views distracted driving differently. Why? Should there be mandatory penalties, like suspension of driving privileges, for distracted driving? Should the punishment for killing someone while texting be just as serious as it is killing someone while driving intoxicated? Are stronger laws the answer? Attorney Marc Lamber is all-too-familiar with the dangers of distracted driving. For the past 20 years, he chaired the plaintiff personal injury practice at Fennemore Craig, P.C., and spearheaded the firm’s Stop Distracted Drivers campaign. “In Arizona, there really aren’t any direct state laws that prohibit texting and driving or talking on the cell phone and driving,” says Lamber. “In light of the ever-increasing data linking driver injury and death to this type of distraction, the lack of concrete laws is rather shocking.” Putting laws into place is just the first step. A 2014 study by the American Journal of Public Health revealed that texting while driving laws do not significantly reduce motor vehicle fatalities. So it’s not just about the laws, it’s about making sure they’re enforced. And that’s not easy. In Washington state, for example, drivers can legally text when stopped at a red light because the law only prohibits texting in a moving vehicle. And in many states, texting while driving laws apply only to sending and receiving text messages but do not address distractions like Snapchatting, checking Instagram, or checking email. For now, the “best” education against texting while driving are the real tragedies that—if only for a short while—remind drivers that no message is as important as the lives it puts at risk.


About John Fagan

John is a Jacksonville native who grew up on the First Coast. He graduated from Bishop Kenny High School in 1975 and went to college at Florida State University where he completed a 4-year program in 3 years. John graduated from the Florida State University College of Business in 1978 and went straight into Florida State University College of Law. While in law school, John earned a position on the prestigious Law Review Board serving as its Business Editor. As a law student, John studied in the Oxford program. He also interned with the Florida Legislature working in the Florida House of Representatives Criminal Justice Committee. John was admitted to the Florida Bar in 1981. John began his legal career as a law school intern in the State Attorney's Office in Jacksonville in 1981. After his internship, legendary State Attorney Ed Austin hired John as a full-time Assistant State Attorney for the Fourth Judicial Circuit (Clay, Duval, and Nassau Counties). As a prosecutor, John tried jury and non-jury trial on charges ranging from DUI to Murder. In 1983, John moved from the State Attorney's Office to begin his career in private practice. He has practiced law for 30 years on the First Coast. For the last 20 years, John and his family have made Clay County their home. John limits his practice to personal injury and disability cases. While there are many fine attorneys in Clay County, John is one of only a few Clay County attorneys who limit their practice to personal injury and disability cases. John takes pride in helping clients resolve injury claims in ways that avoid the stress, uncertainty, and the expense of unnecessary litigation. Professional Activities John is the past President of the Clay County Bar Association and has served on the Board of the Clay County Bar Association from 2009-2013. He is an active member of the Florida Bar, and the Federal Bar of the Middle and Southern Districts of Florida. He is also a member of the American Association of Justice, the Florida Association of Justice, the National Organization of Social Security Claimants' Representatives, and the National Organization of Veterans' Advocates. Service to the Community John is involved in the Clay County Community serving as a member and Director of the Rotary Club of Orange Park, of the Clay County Bar Association, and the Putnam County Bar Association.
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