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A State's Highest Court Rules Distracted Driving Can Constitute "Criminal Negligence"

March 16, 2013

Our Georgia personal injury law firm has long predicted that courts would start to assign criminal liability to those who cause fatal car accidents because they are distracted by a cell phone; it appears that courts are starting to equate cell phone distracted driving with drunken driving for purposes of vehicular homicide.

Criminal law has taken time to catch up to civil courts in terms of applying negligence standards for driver inattention. While traffic safety experts, motor vehicle regulatory agencies and distracted driving researchers have been comparing drivers distracted by cell phones to intoxicated drivers for years, the New Hampshire Supreme Court upheld a recent conviction of negligent homicide based on just such an analogy.

The defendant, Lynn Dion, was sentenced to a term of 18-36 months in prison for slamming into a pedestrian in a crosswalk. Dion was talking on a cell phone at the time of the collision. What makes this case particularly notable is that New Hampshire does not have a law that makes it illegal to talk on a cell phone while operating a motor vehicle. The defendant challenged her conviction on the grounds that her behavior did not constitute criminal negligence because the conduct was not specifically prohibited by law like DUI. In rejecting this analysis, Justice Carol Ann Conboy's opinion indicated, "Conduct that is, itself, not prohibited, including use of a cell phone while driving, may constitute the requisite blameworthy conduct when such conduct results in inattention or distraction."

It is worth noting that conduct must usually be more egregious to constitute "criminal negligence" than what is required to establish negligent conduct in a civil lawsuit. This willingness to impose criminal liability in vehicular homicide cases makes it easier to establish that drivers who are not paying attention to the road have deviated from the reasonable standard of care required of motorists to avoid civil liability.

Although Dion denied using her cell phone when she crashed into two pedestrians crossing the street in a crosswalk, analysis of her cell phone records revealed that she received and placed a number of calls during her 37 minute drive, frequently using the call waiting feature to switch back and forth between conversations. The court in announcing its opinion did not limit its ruling to cell phone use but indicated that any form of lawful activity that causes driver inattention may constitute criminal negligence.

Justice Colby articulating the court's rationale explained that the "issue here is not whether cell phone use while driving is per se blameworthy. Rather, the issue is whether inattention caused by cell phone use or any other 'legal' activity, resulting in the failure to avoid a pedestrian in a crosswalk, demonstrates a level of carelessness the seriousness of which should be 'apparent to anyone who shares the community's general sense of right and wrong.'" We can only hope that criminal penalties will deter the dangerous practice of texting or talking on a cell phone when operating a motor vehicle.

If you or someone close to you is injured in a collision caused by a distracted driver or a loved one dies, Montlick and Associates is available to provide effective legal representation to clients throughout all of Georgia and the Southeast, including but not limited to Albany, Athens, Atlanta, Augusta, Columbus, Gainesville, Macon, Marietta, Rome, Roswell, Savannah, Smyrna, Valdosta, Warner Robins and all smaller cities and rural areas in the state.

No matter where you are located our attorneys are just a phone call away, and we will even come to you. Call us 24 hours a day/7 days a week for your Free Consultation at 1-800-LAW-NEED (1-800-529-6333). You can also visit us online at and use our Free Case Evaluation Form or 24-hour Live Online Chat.

Category: Personal Injury

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All information provided by our blogs is general in nature and should not be relied upon as legal advice. Consult a Montlick attorney for details about your unique situation.