Monday, August 29, 2011
In the legal battle over whether killing someone with a car while texting or talking on a cellphone is reckless behavior or negligent behavior, negligent appears to be winning.
And that’s significant, because reckless driving that results in a death is aggravated vehicular homicide, carrying a two- to eight-year prison sentence. Negligence, however, warrants conviction of vehicular homicide, which carries a six- to 18-month sentence, and could result in probation.
Two cases don’t constitute a trend, but they do cause concern to those who believe that it is not an accident when a driver makes a conscious decision to pay attention to something other than the road, and that decision leads to another person’s death. And, of course, each case has its own set of facts and possible mitigating circumstances.
The first case
The Mahoning County Prosecutor’s office actually pursued the more serious charge against Tasha L. Moore, 29. She was not only distracted by her phone conversation, but impatient when she pulled around stopped traffic in South Avenue and drove over Charles Mulligan, 48, a motorcyclist who was lying in the road after colliding with a car.
The jury declined to convict Moore of aggravated vehicular homicide, but did convict on the lesser charge. This was no open and shut case. Mulligan’s blood alcohol was above the legal limit for presumed intoxication, and he suffered injuries from the initial collision, as well as being struck by Moore.
The second case
In another well-publicized case, no jury will decide whether the driver should be convicted of a felony or a misdemeanor.
Whitney Yaeger, who was 19 when she struck and fatally injured Dave Muslovski, 55, as he was out from a morning walk on Middletown Road, told the Ohio State Highway Patrol that she was texting on her phone when she struck Muslovski.
But prosecutors in Struthers Municipal Court didn’t see her behavior as rising to the level of recklessness and declined to seek a felony indictment. At most, she faced a misdemeanor charge on which she could be sentenced to six months in jail.
Yaeger, however, appears to be of a mind that even that charge carries penalties that are potentially too severe. Last month all the parties, including Muslovski’s immediate family, were in the Struthers court, presumably to clear the case with her entry of a plea. But when she could not be assured that a plea would not involve jail time, she opted to go to trial.
That trial is scheduled to start Sept. 29, a day after Moore is scheduled to be sentenced.
Studies have shown that distracted drivers are every bit as dangerous as intoxicated drivers, but the law — and some prosecutors, judges and jurors — aren’t ready to treat them as equally culpable. And, yet, their victims are every bit as dead.