The Lawletter Vol 38 No 2
In New Hampshire, text messaging while driving a vehicle is illegal, but simply talking on a cell phone while driving is not. In the right set of circumstances, however, the otherwise legal act of talking on a cell phone while driving can support a criminal conviction for negligent homicide when that conduct leads to a fatal accident. Such was the outcome in State v. Dion, No. 2011-786, 2013 WL 474884 (N.H. Feb. 8, 2013) (not yet released for publication).
At about dusk, the vehicle driven by Lynn Dion, traveling at about 30 miles per hour, struck and killed a pedestrian, who had nearly finished crossing a street and who was using a well-lit, brightly painted crosswalk marked with a yellow and black pedestrian crossing sign. Dion denied ever seeing that pedestrian, or her companion, who was also struck by the vehicle but with less serious effects. Dion admitted that intermittently during her fateful trip she had made and received some cell phone calls as she drove, but she denied that she had been on the phone at the time of the collision.
Reconstruction analysis of the collision by the police showed that the defendant had had fully 13.5 seconds in which to see the pair of pedestrians in the crosswalk as she drove across a bridge, that her view had been unobstructed, and that it would have taken her, at most, 1.5 seconds to react upon seeing the women. Nevertheless, at no time before striking the pedestrian who died did Dion slow down, apply her brakes, or turn to avoid the pedestrians, indicating that Dion, as she herself stated, had completely failed to see them. These facts further led the police to conclude that rather than experiencing a momentary distraction, such as could be caused by a sneeze or changing a station on her car radio, Dion had been inattentive for a longer period. But how could this conclusion be reconciled with the defendant's insistence that she had not been on the phone during the moments immediately leading up to the accident? The clinching evidence was Dion's cell phone records, which undercut that part of her story. The records showed that Dion had placed a call to a friend, hung up a few seconds later, and only about 90 seconds after that placed her call to police from the scene of the accident.
Dion sought to no avail to keep her cell phone records from being used as evidence against her at her trial. In upholding the use of such evidence, the court that rejected her appeal ruled that under New Hampshire Rule of Evidence 403, the probative value of the cell phone records was not outweighed by their prejudicial effect. Dion had admitted to a law enforcement officer that she "had made phone calls throughout her trip," and the records of her calls bore directly on the issue of her attentiveness in the minutes leading up to the collision. Such records were "inextricably intertwined" with evidence of the crime of negligent homicide. Id. at *4-5.
As for the conviction itself, which led to a prison sentence, Dion argued to no avail that the evidence against her was insufficient to support her conviction for negligent homicide, because merely using a cell phone while driving does not constitute the required wrongful or blameworthy conduct to establish the culpable mental state for criminal negligence. New Hampshire Revised Statutes section 630:3(I) makes it a felony to cause another person's death negligently.
Section 626:2 states as follows:
A person acts negligently with respect to a material element of an offense when he fails to become aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that his failure to become aware of it constitutes a gross deviation from the conduct that a reasonable person would observe in the situation.
N.H. Rev. Stat. Ann. § 626:2(II)(d) (Westlaw current through Ch. 4 of the 2013 Reg. Sess., not incl. changes by H.H. Office of Legis. Servs.).
In Dion's case, her inattention to the road in front of her, caused by cell phone use and resulting in the failure to avoid pedestrians in a crosswalk, demonstrated that she had failed to exercise that degree of care, diligence, and safety that an ordinarily prudent person would exercise under similar circumstances. Thus, the evidence was sufficient to support her conviction for negligent homicide.