How Your Phone Could Land You in Jail for a Year or More

 Posted on June 06, 2018 in Uncategorized

When you are driving a car in Texas, looking down at your phone or smart watch to read a text from a friend seems harmless, but under Texas law, it's now illegal and you could be arrested on the spot.

In 2017 alone, there were over half a million reported accidents on Texas roadways according to the Texas Department of Transportation. Of those, a little over 100,000 involved some type of distracted driving (driver distraction, inattention or cell phone use). And of those 100,687 distracted driving crashes, 444 resulted in death (a 7% decrease from 2016) and 2,889 resulted in serious bodily injury.

According to a 2015 study by the Transport Research Laboratory, a driver looking at an Apple Watch would take 2.32 seconds to react when an emergency maneuver is required, compared to just 0.9 seconds for a driver talking to a passenger. A driver using a smartphone reacted in 1.85 seconds.

On September 1, 2017, in an effort to continue the downward trend of distracted driving fatalities, the Texas Legislature outlawed the reading, writing, and sending of electronic communications, i.e., text messages and emails, while driving.

And the trend to decrease distracted driving incidents seems to be growing, as cities and states across the United States and Canada have imposed similar laws. In fact, The National Post recently ran an article about a woman named Victoria Ambrose in Ontario, Canada who was found guilty and fined for glancing at her Apple Watch, which the Judge found was "a cellphone taped to someone's wrist."

What does the Texas Texting and Driving Law Actually Say?

Under Texas Law, it is illegal to use a portable wireless communication device to "read, write, or send an electronic message while operating a motor vehicle unless the vehicle is stopped."

But, there are some exceptions to the rule. Specifically, the legislature has laid out the following affirmative defenses to this crime:

• In conjunction with a hands-free device
• To navigate using a global positioning system (GPS) or navigation system
• To report illegal activity, summon emergency help, or enter information into a software application that provides information relating to traffic and road conditions to uses of the application (i.e., Waze)
• To read an electronic message you reasonably believe concerned an emergency
• On a portable wireless communication device that was permanently or temporarily affixed to the vehicle to relay information in the course of the operator's occupational duties between the operator and:
  • Dispatcher; or
  • A digital network or software application service
• Or to activate a function that plays music

The law also specifically excludes authorized emergency or law enforcement while operating in official capacity and operators licensed by the FCC while operating a radio frequency device.

What if You were Involved in an Accident or Crash While Texting and Driving?

While getting a ticket for this offense may set you back anywhere between $25 and $99 for your first offense, the repercussions for texting and driving and causing serious bodily injury or death to someone will cost you more than money out of your wallet.

If you read a text message, write a text message, or send a text message while driving and you cause the death or serious bodily injury of another, you could be prosecuted for the Class A Misdemeanor offense of Texting While Driving – Causing Serious Bodily Injury or Death or prosecuted for a more serious charge like the felony offenses of Aggravated Assault with a Deadly Weapon, Criminally Negligent Homicide, or even Manslaughter.

If you are lucky enough to only be charged with a Class A Misdemeanor for causing death or serious bodily injury, you could be sentenced to:

• Confinement in the county jail not to exceed one year;
• A fine not to exceed $4,000;
• Or both

But, if the police and the district attorney believe that you did something more than just text and drive (i.e., speeding, running a red light, driving into oncoming traffic, or other intentional, reckless, or negligent acts), then you could be charged with a felony.

Aggravated Assault

A person commits the felony offense of aggravated assault if the person recklessly:

• Causes serious bodily injury to another; or
• Uses or exhibits a deadly weapon during the commission of the assault.

A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur.

The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances viewed from the actor's standpoint.

Aggravated Assault is a second-degree felony in the State of Texas and carries a range of punishment of:

• Confinement in the Texas Department of Criminal Justice Institutional Division for no less than 2 years and no more than 20 years; or
• A fine not to exceed $10,000; or
• Both prison and fine

Manslaughter

A person commits the felony offense of manslaughter if the person recklessly causes the death of an individual.

Manslaughter is also a second-degree felony in the State of Texas and carries a range of punishment of:

• Confinement in the Texas Department of Criminal Justice Institutional Division for no less than 2 years and no more than 20 years; or
• A fine not to exceed $10,000; or
• Both prison and fine

Criminally Negligent Homicide

A person commits the felony offense of manslaughter if the person causes the death of an individual by criminal negligence.

A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur.

The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.

Criminally Negligent Homicide is a state jail felony in the State of Texas and carries a range of punishment of:

• Confinement in the Texas Department of Criminal Justice State Jail Division for no less than 180 days and no more than 2 years; or
• A fine not to exceed $10,000; or
• Both confinement in the state jail and fine

The district attorney could also allege that while in commission of the felony offense of criminally negligent homicide that a deadly weapon was used or exhibited. This would increase the penalty range to that of a third-degree felony, which carries a range of punishment of:

• Confinement in the Texas Department of Criminal Justice Institutional Division for no less than 2 years and no more than 10 years; or
• A fine not to exceed $10,000; or
• Both prison and fine

Charged with Causing Serious Bodily Injury or Death While Texting and Driving?

While a misdemeanor does not seem like a big deal, it could affect your ability to find a job or keep the one you have. Employers or potential employers have the ability to run background checks and would be able to see that you've killed or seriously hurt someone while texting and driving.

Convictions on your record, especially ones that involve serious bodily injury or death, can make it difficult to do things like find a job, keep a job, and, in some instances, find housing.

It's is important that if you are suspected of or charged with Texting While Driving – Causing Serious Bodily Injury or Death, that you contact an attorney with expertise and experience in handling cases of this magnitude.

Murphy & McKinney Law Firm, P.C. has the expertise and experience in defending those accused of serious offenses like this and offers you the best chance for success in the courtroom.

So, pull your car over and contact us today at 713-229-8333 so that we can get started working for you.

Chris McKinney is criminal defense attorney at the Murphy & McKinney Law Firm, P.C. and former Felony Vehicular Crimes Prosecutor at the Harris County District Attorney's Office in Houston, Harris County, Texas.