APRIL is DISTRACTED DRIVING Month

Distracted driving is anything that takes your attention away from driving.  In today’s technology age, distraction could include anything from holding your cell phone and talking on it, texting while driving, sending a Snapchat, looking at your Facebook, as well as, eating, using your navigation system or putting on makeup as a few examples.  Sending or reading a text message takes your eyes off the road for about 5 seconds, which is long enough to cover a football field while driving at 55 mph.  But let’s be honest here, how often are we going 55 mph?  The average speed on a highway/freeway is 70 mph which is where the majority of people spend their time driving.

 

The following are cases that I had researched after my dad was killed. 

CASE 2011:  On April 27, 2011, J. Nicolas slammed into the back of an idling car on an Orange County freeway, killing the 23-year-old driver.  An Event Data Recorder – known informally as a “Black box” – in Nicolas’ 2006 Prius indicated she was driving 85mph at the time of the 10:58 collision, according to the prosecutor.  From 10:42am until 10:56am, there’s a record of the defendant sending 13 text messages.  Let that sink in a minute…you’re on a freeway, going 70-85 mph and you’ve sent 13 text messages in a span of 14 minutes.  I can’t even wrap my head around it.  At 10:57am, records indicate Nicolas took a call and then at 10:58am she slammed into the car in front her that was idling in traffic.  So, why didn’t she see that there was a standstill on the freeway?  Distraction…. Period.  Ultimately, after a trial in 2014, a retrial in 2015 and an appeal in 2017, Nicolas made a deal to plead guilty to felony manslaughter and be sentenced to one year in jail and three years of probation in 2017.

This is another case I had researched and one in which I had actually reached out to one of the widows.

CASE 2015:  On September 12, 2015, California Highway Patrol state that R.Hill was driving south on Moorpark Road in Moorpark, CA at 5:19pm when her vehicle swerved to the right and hit 53 year old M. Malish as he was riding a bicycle on the shoulder.  Hill then overcorrected and turned the vehicle into the northbound lanes, where it hit a 43 year old motorcyclist - J.Cushman.  Both men were wearing helmets and both died at the scene.  The police report stated Hill was distracted by her cell phone.  Hill was charged with two counts of misdemeanor vehicular manslaughter, which she later plead no contest to.  She was sentenced to 300 days in jail and 3 years’ probation.  She received less than a year in jail and a misdemeanor on her record. SHE KILLED TWO PEOPLE!

In more recent news, and probably one of the more notable cases is involving CHP Officer Kirk Griess of Vacaville. 

CASE 2018:  The Solano County District Attorney alleges that S. Walker, of Rocklin, was traveling at a high rate of speed at 9am on August 10, 2018 and using his cellular telephone, when veering onto the westbound shoulder of Manuel Campos Parkway in Fairfield, he slammed into a CHP motorcycle officer and J. Manuel, a resident of Vallejo who were amid a traffic stop.  The two were taken to the Medical Center in Fairfield where they later died.  Walker was treated and released.  Walker is charged with two counts of gross vehicular manslaughter and a preliminary hearing is set for March 29, 2019 in Vallejo.

 

I presented three very different cases in California that all have a common thread…distraction while driving resulting in fatalities.  There were two different outcomes with the first two cases.  We have a woman who drove at a high rate of speed while being distracted who was convicted of a felony and received one year in jail and 3 years’ probation.  We have a woman who killed 2 people and received a misdemeanor conviction, 300 days in jail and 3 years’ probation.  With my dads’ case, the girl received a felony conviction, 1 year in jail and 3 years’ probation.  I have to question California in the lack of uniformity of the laws and sentencing surrounding these incidents. I have to question why sentencing is so lenient when in the felony cases, a maximum of 6 years in prison can be awarded.

 

If an officer suspects drunk driving, there are protocols in order for arrest to be made.  These range from Field Sobriety Tests to Preliminary Alcohol Screenings.  If the police officer gathers enough evidence to establish probable cause for an arrest, the suspect will be arrested for suspicion of DUI and will be required to submit to a chemical test of their blood, urine or breath in order to determine their blood alcohol content (BAC).  This is whether and accident has occurred or not.

 

So, I have to ask, in todays day and age, why is there not automatic protocol for distracted driving?  Although, in my dad’s case, the officer did actually ask for the cell phone of the driver who killed my dad, while at the scene, but she was unable to produce it as she “didn’t know where it was,” even though she had just used it right after the incident.  The officer later subpoenaed the phone records which led to the fact that she was distracted driving. So why not have a protocol to lock down scenes in instances like that, to find the cell phone or for it to be mandatory to check cell phones and their usage at the time of collisions or the minutes leading up to. 

 

WHY are some cases of distracted driving fatalities charged as misdemeanors and others as felonies?  My family, along with the District Attorney, had to fight for the felony conviction in my dads’ case.  WHY?  I’ll tell you why, it’s because driving while distracted is an infraction in California.  You have to prove gross negligence in cases like these.  Gross negligence is key to the legal definition of vehicular manslaughter under Penal Code 192(c)(1). If the prosecutor cannot show that you acted with gross negligence, then you may only be guilty of normal (misdemeanor) vehicular manslaughter.  Gross negligence is something more than ordinary carelessness, inattentiveness, or error in judgment. Gross negligence occurs only when:          

  1. A person acts in a reckless way that creates a high risk of death or great bodily injury; AND

  2. A reasonable person would have known that acting in that way would create such a risk.

It is only gross negligence if the person acts so differently from how an ordinarily careful person would act in the same situation that his or her act indicates a real disregard for human life or the consequences of his/her actions.

 

Well, isn’t being distracted while you should just be DRIVING not then a reckless way that creates high risk of death or great bodily injury?  I am a reasonable person, I know that acting in that way has risk, which is why I DON’T TEXT AND DRIVE because I have regard for not only my life, but others as well.  It doesn’t take a rocket scientist to figure this out.  Distracted driving fatalities should be automatic felony charges.  Period.

 

The state of California has banned all drivers from texting, and this ban is considered a primary law. Furthermore, drivers are also prohibited from hands-free text messaging, as well as voice-operated text messaging. The text messaging fine is $20 for a first offense, and $50 for a repeat offense. Senate Bills are being presented that would make distracted driving a moving violation and add a point to the driver's record. This is a great start as any points added to a driver’s license make insurance rates go up, which hits your pocketbook….it also makes the insurance companies more money.

 

But, with regard to the distracted driving fatalities, there needs to be protocols and stiffer laws.  No one should have to go through years of court dates and reliving tragedy as my family and as the families you read about above did, to get justice for their loved ones.  Those of us left behind are handed a life sentence.  Why are the ones who caused it getting off so easy?

 

So you may ask - what can we do?  Where can we start to make change?  That is where I’m at right now.  I am sending my family’s story to people (who I HOPE can help make a difference) at the Capitol.  I’m in the process of starting a foundation, in memory of my dad, that will hopefully help bring awareness, that will be a platform for others to speak out on as well as a platform to move forward for change here in California.  We need to ban together as there is not only safety in numbers, but a louder voice to be heard when you have the support behind you.  I hope you’ll join me in the future because together…we can make change. 

 

Article contributed by Shauna Judnich / #JustDrive

 

 

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