How Texting Behind the Wheel Risks Criminal Liability

Not afraid of texting behind the wheel? Read this and you will be!

There has been much in the media recently about a texting ban that recently went into effect in Massachusetts.

While the punishment as of now is only a fine, I am writing on a much more serious side of this issue: What happens if you are messing with your phone, cause an accident, and someone is killed?
Now typically in Massachusetts, drivers in fatal accidents are only charged with motor vehicle homicide. This is a surprisingly minor charge. However, in serious cases, where “wanton or reckless” behavior is involved, a driver can be charged with involuntary manslaughter–an extremely serious charge.
My first exposure to this issue came when I was working for a defender in law school. We were working on a case of kid who was drunk, went up the wrong way of a highway ramp, and killed a 16 year-old girl. Because the court found that his behavior may have been “reckless” and not merely “negligent,” he ended up pleading to manslaughter and ended up with 7 years in jail.
So the question is whether texting behind the wheel can be considered manslaughter. This legal term is largely defined by the Worcester Firefighter’s case, Commonwealth v. Levesque:
“Involuntary manslaughter is ‘an unlawful homicide, unintentionally caused … by an act which constitutes such a disregard of probable harmful consequences to another as to constitute wanton or reckless conduct.'” 436 Mass. 443, 438 (2002)

At first blush, texting may not cover this definition. One could argue that the “harmful consequences,” while significant, are not actually probable. That is to say that there is not a 50% +1 chance that texting will lead to a fatal accident. However, the same can be said for drinking and driving. Most people would agree that there is less than a 50-50 chance that a drunk driver will kill someone. Yet courts have upheld the provision of Melanie’s Law that establishes the charge of manslaughter by drunk driving.

To understand how this issue could impact you, it is important to understand that juries can take into account their common sense and experience when it comes to determining whether conduct is “wanton or reckless.” This means that societal standards come into play. So while 5 years ago, texting and driving may not be considered “wanton or reckless,” things may have changed in recent months. There has been so much media, government, and law enforcement attention to this issue, that it is harder and harder to claim ignorance of the “probable harmful consequences.” In other words, as society becomes more aware, the criminally accused are held to a higher standard. If one of my loved ones were killed by a texting driver, I would damn sure want the person charged with manslaughter. Likewise, if I were sitting on a jury in a similar case involving a stranger, I would agree that texting behind the wheel–with all the information out there right now–amounts to recklessness.

If your own safety is not enough to deter you from texting behind the wheel, the potential criminal consequences provide another angle. That is to say nothing of the civil liability one might face in what would be a slam-dunk civil suit for gross negligence. But that’s a topic for another time. The bottom line is that “accident” is a misnomer for a death caused by texting behind the wheel. Labeling such events as “homicides” far more accurately reflects the current state of the law.