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Why Del. Cline and I Propose to Restrict Phones While Driving

By Del. Scott Surovell

(Editor's note: Del. Scott Surovell, a Democrat, serves as the state delegate representing the 44th District in the Virginia General Assembly. Patch is publishing his opinion piece here as well as on other Patch sites within his District.)

At 10:30 p.m. on Sunday, May 15, 2011, 18-year-old Kyle Rowley was driving home from his summer job down Route 7 near the Fairfax County line when his car ran out of gas. He pulled his car into the right-hand lane, turned on his flashers and got out to push his car off the road.

Behind him, Jason Gage approached from the west. About 20 feet from a break in the curb, Gage’s car struck Rowley and his car from behind, throwing Rowley to the middle of the road where another car ran him over. Both cars flipped and rolled. Gage was rendered unconscious, had no recollection of what occurred. No one witnessed the collision.

Gage had 2,000 feet of straight, level pavement on a lit road to see Kyle’s vehicle. There were no skid marks. A forensic analysis of his mobile phone revealed that he sent or received text messages within fifteen seconds of the time stamp on the 911 call reporting the collision.

I represented Kyle Rowley’s family in his wrongful death action. 

A Fairfax County General District Court Judge found Gage not guilty of reckless driving after noting that the Commonwealth could not prove any driving behavior beyond a reasonable doubt, except for possibly the texting on a hand-held electronic device. Because the maximum punishment for texting while driving under Virginia law is a secondary non-reckless infraction, the judge dismissed the charge, as required under Virginia Law.  Jason Gage has never been punished by the state for the death of Kyle Rowley and cannot be under our current laws.

Del. Cline and I believe that Virginia’s laws should be changed and we are introducing a bill in the General Assembly next month.

Texting Is Especially Dangerous

In 2009, a Virginia Tech Transportation Institute study found that texting while driving takes a driver’s eyes off the road for an average of 4.67 seconds. At 65 miles per hour, that’s equal to driving with your eyes closed for 1.5 football fields. 

The same study found that texting while driving increases the chances of a safety-critical driving event by 23.24 or 2,300%. By comparison, eating while driving increases the chances by 1.01, smoking 0.97, talking on a phone hands-free 0.44 and talking on a handheld phone 1.04. In other words, while many behaviors while driving are unsafe, texting while driving is exponentially riskier than other behaviors.

Last year, the American Safety Council found that cellphone use was involved in 28 percent of all collisions. Other studies have shown that a majority of Americans under age 30 admit to texting while driving on a regular basis.

In Virginia today, the maximum penalty for texting while driving is $25 for a first offense and $50 for a second offense. No one can be stopped solely because an officer sees him or her using a phone. 

Delegate Ben Cline and I are proposing changes. Delegate Cline is a Republican from Lexington, a prosecutor and Chairman of the Conservative Caucus. Some say we are a political odd couple, but as legislators and attorneys we have been discussing the problems with the existing law for the last six months. We each understand the current law’s deficiencies from different points of view, and believe that there is a need to change current law to make our roads safer. Two weeks ago, the approach in our bill was endorsed by the Virginia Crime Commission. 

We have several objectives. First, using a phone for anything other than a phone call should be a primary traffic offense. Second, if such use of a phone is a proximate cause of an accident or injury to person or property, it should be classified as reckless driving. Third, Virginia needs to send a clear message that use of a phone for anything other than a voice call while driving is dangerous behavior that needs to stop.

This legislation will no doubt be modified as the General Assembly works its will. We have already received requests to create exceptions for global position systems (GPS) functions, playing music and law enforcement. We are both hopeful that something will finally happen this year.

It is an honor to serve as your delegate. Please send me your feedback at scottsurovell@gmail.com

Dave Webster December 17, 2012 at 11:10 PM
Judge Gallahue ruled that the existing texting while driving statute, with its $25.00 maximum fine for a first offense, had superseded the reckless driving statute. Here is a statement from the trial transcript: “I think you are driving recklessly but the legislature has said texting is something way less than that.” The solution is to repeal the existing texting while driving law and allow the reckless driving law to be used for any type of behavior, including texting, that results in a driver not paying attention and causing an accident.
Scott Surovell December 18, 2012 at 12:33 PM
Dave: You are right. That's one solution, but not the only solution. The existing law lacks clarity in these situations. We want to make sure other kinds of phone use is included - emailing, browsing, Angry Birds, etc. There probably needs to be some exceptions. We will see what happens as this moves through the process.
T Ailshire December 18, 2012 at 01:17 PM
I love the idea of preventing texting while driving, but believe DC has proven how difficult it is to enforce (ever drive through there? Or worse -- walk, and see drivers' behavior?); that limits a law's value. This law will not prevent texting. It is highly unlikely it will be enforced; it will simply be prosecuted - after the fact - in collision cases. Imagine a police officer leaving his cruiser on a foggy, rainy, cold, or snowy day to write a texting ticket! So if a law will not PREVENT something, it would seem the logical action is not to bother with that law, and rather make the penalty for distracted driving something a driver will not be willing to chance.
Scott Surovell December 18, 2012 at 04:54 PM
Tess - I agree with you 100% that enforcement is a problem. It's something we're talking through right now with VA Prosecutors and law enforcement. Some people think a hand's free ban is better because it's easier to enforce and reduces the chance that the police will unnecessarily stop someone - e.g. someone dialing a phone number that a police officer mistakes for texting. We'll see what happens.
Donald January 05, 2013 at 09:12 PM
The long opening anecdote makes clear that this is a textbook instance of a hard case that's about to make bad law. Del. Surovell doesn't spell this out, but if his civil defendant had gotten a criminal conviction for the accident, Attorney Surovell would have had negligence per se in his wrongful death suit. Is this sort of private experience really good motivation for a Delegate to push as sweeping a law as this? When the problems with a new criminal law are so foreseeable, but legislators bull ahead, the end results will certainly include: (1) yet another erosion in what's left of the 4th amendment: you can add "the officer thought he saw a cell phone screen glowing in the driver's hand" to the litany of eye-rolling reasons for traffic stops; and (2) yet another quantum of power for prosecutors in misdemeanor / traffic court (which is the cynic's explanation of Del. Cline's enthusiasm here).

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