The criminal and civil consequences of distracted driving (as featured in Bench & Bar of Minnesota 11/4/16) By: Lindsay Mancini / James Gempler
Crashes that involve distracted driving have risen consistently in recent years. This article examines the criminal and civil exposure arising from texting and driving—and some ways in which the legal consequences may become more dire if the problem persists.
Although distracted driving is illegal in Minnesota, a study published by AT&T last year revealed that shocking percentages of smartphone users engage in distracted behaviors on the road. Those admitting to distracted driving confessed to participating in the following:
- sending or reading texts (61 percent);
- sending or reading emails (33 percent);
- surfing the internet (28 percent);
- taking photos/selfies (17 percent);
- participating in social media (Facebook 27 percent, Twitter 14 percent, Instagram 14 percent, Snapchat 11 percent); and
- video chatting (10 percent).1
Unsurprisingly, distracted driving accidents have been rising consistently. According to the Minnesota Department of Public Safety, at least one in four automobile crashes is due to distracted driving.2 The U.S. Centers for Disease Control has released data revealing that every day, over one thousand people in the United States are injured, and 8 to 10 are killed, as a result of distracted driving.3
This article will explore how distracted driving—commonly referred to as simply ‘texting and driving’—can lead to serious and long-lasting criminal and civil consequences.
Depending on the driving conduct and its consequences, a distracted driver can face charges ranging from a simple traffic citation to a felony. But making the case can be challenging, depending on the evidence the state can gather—much of which can depend on what the driver provides or does not provide when stopped. After detailing the possible criminal charges, we will explore the legal obligations associated with the stop and the critical role this plays in the subsequent criminal case.
When people think about a “texting and driving” citation, the most common charge is the petty misdemeanor traffic ticket, where the total fine is less than $300 and there is no jail. Petty misdemeanors are not considered crimes under Minnesota law.4
It is illegal for any driver to “operate a motor vehicle while using a wireless communications device to compose, read, or send an electronic message, when the vehicle is in motion or a part of traffic.”5 The definition of ‘electronic message’
a self-contained piece of digital communication that is designed or intended to be transmitted between physical devices. An electronic message includes, but is not limited to, e-mail, a text message, an instant message, a command or request to access a World Wide Web page, or other data that uses a commonly recognized electronic communications protocol. An electronic message does not include voice or other data transmitted as a result of making a phone call, or data transmitted automatically by a wireless communications device without direct initiation by a person.6
The “other data” in that definition may be referring to apps, but this has not been analyzed by Minnesota courts yet. Essentially, you cannot use your phone while driving to text, email, access the internet, or use any apps that use data. These rules apply regardless of whether the vehicle is in motion or stopped at a traffic light.
There are a few exceptions in which the device may be used contrary to these general rules:
- solely in a voice-activated or other hands-free mode;
- for making a cellular phone call;
- for obtaining emergency assistance to (i) report a traffic accident, medical emergency, or serious traffic hazard, or (ii) prevent a crime about to be committed;
- in the reasonable belief that a person’s life or safety is in immediate danger; or
- in an authorized emergency vehicle while in the performance of official duties.
Notably, it is unclear if voice-activated texting is permissible or if you can use the phone for directions on a road trip, if the phone is in a hands-free mode when doing so.
The laws tighten for drivers under the age of 18. No driver under the age of 18 may use a cell phone—for any reason—while driving a vehicle.7 It is an affirmative defense, though, if the teen used the phone for emergency purposes or to report a crime. Likewise, no school bus driver may use a cell phone while driving a school bus.8
MISDEMEANOR AND GROSS MISDEMEANOR CHARGES
If the distracted driving leads to particularly poor driving conduct, a driver may be cited for careless or reckless driving. Reckless driving is defined as “a person who drives a motor vehicle while aware of and consciously disregarding a substantial and unjustifiable risk that the driving may result in harm to another or another’s property….”9 The risk is further defined as that of “such a nature and degree that disregard of it constitutes a significant deviation from the standard of conduct that a reasonable person would observe in the situation.”10 This is a misdemeanor offense, though it can be raised to a gross misdemeanor if great bodily harm is caused.11
Meanwhile, careless driving is defined as “any person who operates… any vehicle upon any street or highway carelessly or heedlessly in disregard of the rights of others, or in a manner that endangers or is likely to endanger any property or any person, including the driver or passengers of the vehicle.”12 This, too, is a misdemeanor, but cannot be raised to a gross misdemeanor.
These are unlikely charges, for now. But, if the statistics continue to show that distracted driving leads to more accidents, including serious accidents, it would not be surprising to see prosecutors turn to these misdemeanors as a way to more aggressively confront this growing problem.
If the driving conduct is particularly egregious and results in great or substantial bodily harm, the driver may face felony criminal vehicular operation charges.
It is a felony if a person operates a motor vehicle in a “grossly negligent manner” and causes great or substantial harm to another.13 Minn. Stat. §609.2113, subds. (1)(1), (2)(1). Gross negligence is substantially higher in magnitude than ordinary negligence and is defined as very great negligence or absence of even slight care.14 It requires the presence of some egregious driving conduct along with other evidence of negligence.15 But, this is not the same as requiring willful or intentional conduct.16
Proving one of these charges is not necessarily easy. After all, it is legal—for most individuals—to use a cell phone while driving. It’s the type of use that is at issue and how it affects your driving. So it’s critical to this analysis for the state to be able to prove that you were illegally using your phone. This typically requires either eyewitness testimony from the officer making the stop, an admission from the driver, the seizure of the phone itself, or public information from social media sites.
The officer will testify to what he or she saw. Typically, this means he or she saw you with your head down, buried in the phone, saw the glow from the screen, and/or your driving conduct was imperfect. But unless the officer has incredible vision to see how the phone is being used at that exact moment, and knows it is being used contrary to the law, eyewitness testimony should only serve as circumstantial evidence at best—even with all of the “experience and training” testimony that will undoubtedly be used in an attempt to bolster the officer’s credibility. More often than not, the officer probably doesn’t have the best vantage point and won’t be able to pinpoint exactly what you were doing while on the phone. And since it is legal to use your phone for making phone calls, for instance, it should be unlikely that the officer is able to state that you were, in fact, using the phone contrary to the law. A skillful cross-examination can explore these significant issues. And if that occurs, the state may need more firm evidence than just this circumstantial evidence.
This is where an admission to improper phone usage is invaluable to prosecutors. When an officer stops a person, one of the most common questions to ask first is: “Do you know why I pulled you over?” This is nothing more than an exercise in getting the driver to admit to a certain offense. And, because we are Minnesota Nice, we usually answer honestly, often to our detriment. There is no need to help the state gather evidence to be used against you.
Remember that when a driver is stopped, he or she is under no obligation to answer the officer’s questions. Instead, respectfully and politely decline to answer. Or, if the Minnesota Nice side must come out, succinctly state that you were using the phone to place a call. In the event you acknowledge that you were on Facebook, for instance, the state just made its case because that statement can and will be used against you.
SEIZURE OF THE PHONE
If the officer seizes your phone, accessing your phone or data is still necessary, and raises other significant issues based upon whether and how your phone is protected by a passcode or touch ID sensor.
The state must obtain a warrant—or find an exception to the warrant requirement—in order to search the contents of your phone.17 And if your phone is protected by a passcode, the 5th Amendment protects us from being forced to provide the passcode.18 Doing so would require us to provide evidence against ourselves, which is exactly what the 5th Amendment prohibits.19 But if your phone is protected by your fingerprint, the police may compel you to provide your fingerprint.20 The reason for this distinction is that fingerprints are considered material evidence, much like blood or handwriting samples, whereas the passcode is a thought and idea of the person that is protected by the 5th Amendment.21
Even so, if police access your phone lawfully, there is only so much information that can be immediately gleaned. For instance, let’s say your date and time stamps for text messages did not match the time of the alleged incident. The police may also need to seek a warrant to compel your data provider to provide data usage information at or around the time of the alleged incident to show that you were still using the cell phone in an improper manner (for instance, to show you were surfing the web). This can be a time-consuming and difficult process that some agencies may not pursue, particularly for less serious violations. The provider may not even have the information the state is seeking.
Finally, there may be ample evidence of your phone usage while you were driving that is readily available on public social media sites. If you were updating your status, posting pictures or messages, or otherwise active on social media, this activity is often accompanied by both date and time stamps. If these date and time stamps match or appear close in time to the alleged incident, this public information may be further circumstantial evidence against you.
Proving the case may become easier in the future if states pursue new technological advances to gather evidence. One measure being considered in New York is the Textalyzer.22 Under a bill being considered, police may be equipped with a Textalyzer that would permit officers to scan your phone immediately at the scene to determine if you were texting at the time of the incident. Currently, the bill provides for its use only in accident cases. But technological advances such as this will undoubtedly continue, and these sort of methods will be implemented to combat this issue. Now, just as in the case of the breathalyzer, new legal issues come with these advances—but that’s for another day and article.
Taking your eyes off the road for more than two seconds can double your risk of being in a crash.23 Reading or sending a text message drastically increases your odds of getting into a car accident, yet 61 percent of drivers admit to partaking in this unsafe, completely preventable behavior.24
TEXTING AND DRIVING
The consequences of distracted driving extend beyond potential criminal charges. In July 2015, a teenage driver sent a message on his phone, ran a red light, and crashed into a minivan in Becker, Minnesota, killing a father and his 10-year-old daughter.25 In October 2015, a pedestrian in New Prague was struck and killed by a woman who recently admitted to texting and driving.26 In February 2016, a driver crossed lanes of traffic on Highway 95, killing a 22-year-old Hudson woman. Evidence suggests the driver was using a cell phone.27
Research completed by the National Highway Traffic Safety Administration has revealed that the impairments associated with drunk driving and texting while driving are similar; the relative risk of being in a motor vehicle collision while using a cell phone is similar to the hazard of driving with a blood alcohol level at the legal limit.28 However, if you are involved in a motor vehicle collision and the at-fault party is texting while driving, a tort claim for personal injuries plays out identically to a tort claim where distracted driving did not play a role.
CLAIMS FROM TEXTING AND DRIVING COLLISIONS
NO-FAULT/PERSONAL INJURY PROTECTION (PIP)
A Minnesotan suffering injuries arising out of the maintenance or use of a “motor vehicle” has a right to no-fault (also referred to as Personal Injury Protection/PIP) benefits, including an at-fault driver if he/she qualifies under the Minnesota No-fault Act, §65B. Generally, no-fault coverage includes $20,000 for medical expenses and $20,000 for wage loss and replacement services, regardless of who caused the accident.
The accident victim also can bring a negligence claim against both the at-fault driver and the owner of the vehicle, as the owner is vicariously liable for the acts of a permissive user.29 In order to bring a negligence claim, one must meet one of the following thresholds: (1) permanent injury; (2) over $4,000 in medical bills; (3) disability for more than 60 days; (4) permanent disfigurement; or (5) death.30 This is a general negligence claim for compensatory damages, which may include past and future medical expenses, wage loss/earning capacity, and pain and suffering. Such negligence claims are covered by the at-fault party’s bodily injury liability insurance.
FIRST PARTY CLAIMS
If the at-fault party lacks adequate liability coverage to compensate an injured party, the injured party may also bring a subsequent first-party underinsured motorist (UIM) claim. If the at-fault party failed to carry automobile insurance, the injured party could bring a first-party uninsured motorist (UM) claim.31
Liability, UM, and UIM insurance provide coverage for compensatory damages (economic and non-economic).
Punitive damages are defined under the Restatement (Second) of Torts §908 as “[d]amages, other than compensatory or nominal damages, awarded against a person to punish him for his outrageous conduct and to deter him and others like him from similar conduct in the future.” Although it is clearly unsafe for drivers to use a smartphone while driving, Minnesota has yet to allow punitive damages claims against distracted drivers who cause personal injury accidents.
In order to bring a claim for punitive damages, a plaintiff must seek approval to amend his or her complaint under Minn. Stat. §549.191, requiring the injured party to “allege the applicable legal basis under Minn. Stat. §549.20 or other law for awarding punitive damages in the action and must be accompanied by one or more affidavits showing the factual basis for the claim.” Minn. Stat. §549.20 allows for a punitive damages claim when the negligent party acts with “deliberate disregard for the rights and safety of others.” However, there are more specific statutes that allow the inclusion of punitive damages, specifically Minn. Stat. §169A.76 for drunk driving.
Currently, Minnesota courts have only allowed compensatory damages in tort automobile claims, unless the at-fault party was intoxicated as established under Minn. Stat. §169A.76. Under this statute, a claim for punitive damages may be allowed when there is evidence that the accident was caused by a motorist: (1) with a blood alcohol concentration of .08 or more; (2) who was under the influence of a controlled substance; (3) who was under the influence of alcohol and refused to take a chemical test; or (4) who was knowingly under the influence of a hazardous substance substantially affecting the nervous system, brain, or muscles so as to impair the ability to operate a motor vehicle.32
Although Minnesota courts have not yet allowed punitive damages in distracted driving cases, there is no law preventing a plaintiff from amending his or her negligence complaint to add this count. Unlike drunk driving, there is no distracted driving statute enumerating requirements to bring the claim. Consequently, punitive damages for such behavior would fall under the general standard of Minn. Stat. §549.191.
As with any punitive damages claim, whether the motion will be successful depends on the particular circumstances of the case. For example, two distracted driving scenarios come to mind. The first is the driver using his cell phone sending a quick message, traveling at a low speed, after checking for traffic and pedestrians. During this usage, the driver negligently rear-ends another vehicle causing an injury. The second is a driver who has had multiple and recent criminal convictions for texting and driving, and causes an injury accident while using one of Snapchat’s filters to capture real-time speed, such as in a recent Georgia case.33 While a judge would likely deny a motion to amend a complaint to add a claim for punitive damages in the first scenario, a motion in the second should arguably be granted.
Mirroring all other jurisdictions, Minnesota courts have not yet allowed plaintiffs to seek punitive damages, even where there has been evidence to establish that the defendant drivers were texting and driving. Plaintiffs’ attorneys across the country have brought hundreds if not thousands of these motions, but they are rarely, if ever, approved.
Since punitive damages are not covered by most insurance policies, the threat of punitive damages could be a significant deterrent to distracted driving. In Minnesota, there is no statutory cap on punitive damages.
A main criticism of expanding punitive damages to include distracted driving cases relates to the commingling of civil tort and criminal law. The purpose of civil tort claims is to make the injured party “whole” by compensating him or her for the injuries sustained as a result of the defendant’s actions.34 Conversely, criminal charges seek to punish a defendant by issuing fines or jail time.
As studies have shown driving quality to be similar between those using smartphones and those intoxicated at the legal limit, why shouldn’t the consequences be similar when the acts cause bodily injury to others? Distracted driving is undeniably dangerous, and therefore those participating in this behavior should be held accountable.
Even if, most of the time, using a smartphone while operating a motor vehicle is just distracted driving, at other times the usage rises to a higher level—driving while impaired. Similar to driving under the influence, driving while impaired should result in punitive damages as a means of punishing and deterring the culpable party.
ANTI-DISTRACTED DRIVING EFFORTS
Because texting and driving is a fast-growing problem, there have been many local, state, and national efforts to curtail the behavior. One of the largest programs is AT&T’s “It Can Wait” campaign, which has over 8 million pledges by drivers to not text and drive but has been disappointingly unsuccessful.35 The National Highway Traffic Safety Administration’s “Stop the Texts, Stop the Wrecks” is another large campaign, heavy with teen-targeted PSAs.36 No program, however, has proven to be effective in decreasing distracted driving, as they only seek voluntary cooperation.
Stricter criminal and civil penalties for smartphone use could make more of a difference. The United States Department of Transportation is leading the effort currently, banning texting and cell phone use for commercial drivers, encouraging all states to adopt tough distracted driving laws, and holding two national distracted driving summits.37 Since voluntary campaigns have not been successful, strict anti-texting laws with criminal punishments, combined with the potential for punitive damages in civil tort cases, will hopefully help decrease this behavior.
JAMES GEMPELER is a founding partner at North Star Criminal Defense, where he represents defendants throughout the State facing the full range of criminal charges. Mr. Gempeler is also a leader in the state on expungements of criminal records for deserving and needful clients.
LINDSAY MANCINI is a partner and litigation attorney at Woods & Thompson, P.A., a Minneapolis personal injury firm. Ms. Mancini is an impassioned advocate against distracted driving, and often presents on the subject to many community groups, including local high school driver’s education classes.
4 Minn. Stat. §609.02, subd. 4a.
5 Minn. Stat. §169.475, subd. 2(a).
6 Id. at subd. 3.
7 See Minn. Stat. §§171.05, subd. 2b(d) and 171.055, subd. 2(b).
8 Minn. Stat. §169.443, subd. 9(b).
9 Minn. Stat. §169.13, subd. 1(a).
11 Id. at subds. 1(c-d).
12 Id. at subd. 2.
13 Minn. Stat. §609.2113, subds. (1)(1), (2)(1).
14 State v. Plummer, 511 N.W.2d 36, 39 (Minn. Ct. App. 1994)
15 State v. Miller, 471 N.W.2d 380, 384 (Minn. Ct. App. 1991)
16 State v. Bolsinger, 21 N.W.2d. 480, 485 (Minn. 1946)
17 Riley v. California, 134 S.Ct. 2473, 2495 (2014) (holding that “the answer to the question of what police must do before searching a cell phone seized incident to arrest is … simple – get a warrant.”).
18 See United States v. Kirschner, 823 F.Supp. 2d 665 (E.D. Mich. 2010)
19 No person “shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V.
20 United States for the Central District of California, in the Matter of the Search of iPhone seized from 3254 Altura Avenue in Glendale, California (filed March 15, 2016) (“Law enforcement personnel are authorized to depress the fingerprints and/or thumbprints of the person covered by this warrant onto the Touch ID sensor of the Apple iPhone seized from ….”); Virginia v. Baust, No. CR14-1439 (Va. Cir. Oct. 28, 2014).
21 See Doe v. United States, 487 U.S. 201 (1988) (Justice Stevens dissenting: A defendant can be compelled to produce material evidence that is incriminating. Fingerprints, blood samples, voice exemplars, handwriting specimens, or other items of physical evidence may be extracted from a defendant against his will. But can he be compelled to use his mind to assist the prosecution in convicting him of a crime? I think not. He may in some cases be forced to surrender a key to a strongbox containing incriminating documents, but I do not believe he can be compelled to reveal the combination to his wall safe—by word or deed) (cited with approval by United States v. Hubbell, 530 U.S. 27 (2000)).
29 Minn. Stat. §169.09, subd. 5a (2006).
30 Minn. Stat. §65B.51, subd. 3 (1996).
31 See http://www.startribune.com/minnesota-lawmakers-target-uninsured-drivers/285572331/. Studies have revealed that one in ten Minnesota drivers do not have liability coverage on their vehicles.
32 Minn. Stat. §169A.76 (2014).
33 See http://www.mlnlaw.com/wp-content/uploads/2016/04/maynard-v-snapchat-complaint.pdf. One of the most popular smart phone apps for teens and young adults is Snapchat, which has the “speed filter,” which along with a photo or selfie, will calculate and post the speed a person is driving. On September 10, 2015 in northern Georgia, Christal McGee was trying to get her father’s Mercedes above 100mph specifically to post her speed on Snapchat, when she crashed into another vehicle and into an embankment. The vehicle McGee hit, was driven by Wentworth Maynard, who suffered a severe traumatic brain injury among other injuries. Of note, Maynard’s attorney commenced litigation in April 2016 against not only McGee for damages, but also Snapchat, Inc., alleging “… Snapchat knew that wrecks had occurred due to the use of Snapchat’s app while driving at a high speed” and “[d]espite Snapchat’s actual knowledge of the danger from using its product’s speed filter while driving at excess speeds, Snapchat did not remove or restrict access to the speed filter.”
34 Black’s Law Dictionary 270 (Abridged 6th ed. 1991).