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Driving while Texting and Vehicular Manslaughter

A Southern California man faces charges of vehicular manslaughter and negligence for running over and killing a pedestrian. He is alleged to have been texting while driving, but the lack of evidence regarding when he texted illustrates that what really matters is whether he was grossly negligent.

Lately we've seen much coverage of the dangers of texting while driving. Many states have instituted bans against it.

The case of Martin Burt Kuehl shows us that even if not texting at the exact moment of collision, having texted near the time of the accident can be part of a larger question: where you distracted while driving?

Mr. Kuehl is accused of killing Martha Ovalle, a Guatemalan immigrant crossing a Newport, California street in a marked sidewalk. According to the Newport Daily Pilot, prosecutors admit that they have no evidence that Kuehl was texting at the moment of the accident.

Phone records purportedly show Kuehl to have been texting about 30 minutes before the accident. Police reportedly found his open cell phone next to the driver's seat. A witness told police that moments before the accident Keuhl failed to notice that a light had turned green until prompted by another driver's honk.

Keuhl has been charged with vehicular manslaughter. He faces up to 9 years in prison.

In California, as in many states, vehicular manslaughter requires that the perpetrator have a "grossly negligent" state of mind. Someone acts negligently if he injures someone else by breaking a reasonable duty of care to that person. Someone is grossly negligent if they knowingly disregard the safety of others.

In states that have enacted a ban on driving while texting (or talking on the phone, or whatever), breaking that rule can be "per se" negligence, but of course is not the only way you can be negligent.

This means that if you did it, negligence is assumed instead of requiring more proof. However, even if the police can't cite a driver for driving while texting, there are many ways to show that someone was negligent or grossly negligent.

As Mr. Kuehl's case shows, evidence of extreme distraction (which might include having been texting, not paying attention to traffic lights, etc.) can lead not only to a negligence charge, but all the way to a manslaughter charge.

This would apply also to states where no specific bans on texting while driving have been put in place. The totality of what's going on while someone is behind the wheel determines whether or not they were negligent, or grossly negligent in an accident.

Even if you put the phone down after texting while driving, that text may still be evidence that you had been driving in a distracted state, which too often has life ending consequences.