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Commentary: Distracted Driving Can Be Reckless

— On July 1, a new Virginia Law goes into effect makes it clear that writing or reading emails or text messages is now a primary offense for which a driver may be stopped. The law also makes clear that if someone is convicted of reckless driving and texting/emailing while driving, there is a mandatory minimum fine of $250.

Some of the media coverage about this new law has indicated that people can use their GPS while driving or that the law contains a loophole for other behaviors such as using Facebook, Twitter, or playing Angry Birds — this is wrong. Some people have suggested that it should cover picking up a cigarette, putting on makeup or reading the newspaper while driving — this is unnecessary.

For at least the last 60 years, reckless driving has been illegal and a Class 1 Misdemeanor in Virginia. There are about 10 specific things that are reckless driving (such as driving 20 MPH over the speed limit) and a general catch-all statute. Here's the broad statute:

§ 46.2-852. Reckless driving; general rule.

Irrespective of the maximum speeds permitted by law, any person who drives a vehicle on any highway recklessly or at a speed or in a manner so as to endanger the life, limb, or property of any person shall be guilty of reckless driving.

Class 1 Misdemeanors have a maximum punishment of 12 months in jail, a $2,500 fine, and reckless driving also provides for an optional six months driver's license suspension.

As smartphones proliferated in 2009, some legislators felt that it was necessary to pass a more specific statute relating to texting and emailing so that the law clearly banned it. A new law made texting and emailing a secondary offense but you could not be stopped for that behavior.

Some lawyers argued successfully in court that by adopting a statute that was more specific than reckless driving, the legislature had effectively decriminalized texting and emailing while driving. The most notable case was right here in Fairfax County.

Kyle Rowley's car ran out of gas coming home from his summer job on Route 7. He turned on his flashers and got out of his car to push it off of the road. Jason Gage struck Kyle from behind at full speed without breaking with 1,000 feet of straight, level, clear roadway in light traffic. Kyle was killed instantly. A forensic analysis of Gage's phone showed seven text messages sent and received over the 10 minutes leading up to the collision. I represented Kyle's family in the civil suit.

A Fairfax County General District Court judge dismissed the reckless driving charges against Gage because no one could prove any driving behavior separate and apart from possible texting and the General Assembly had specifically passed 46.2-1078.1. He also criticized the legislature for passing the texting statute in the first place because it made it harder to prosecute.

This year, I introduced the first legislation to fix the problem with Del. Ben Cline. I was ultimately a co-sponsor of a broad bipartisan effort that only had 12 no votes on the final vote.

I requested an opinion from the Attorney General to clarify the law before July 1. His opinion makes it clear that “on and after July 1, 2013, if a driver operates a vehicle on a highway recklessly or at a speed in a manner so as to endanger the life, limb, or property of any person, while using a hand held personal communication device, that driver can be charged and convicted of reckless driving regardless of whether there are grounds to support a violation of § 46.2-1078.1.”

In other words, no matter what you are doing in your car, if you to drive in a manner that endangers life, limb or property, you can be convicted of reckless driving. We do not need a statute for changing your make-up, tweeting, etc. to make it illegal driving behavior.

Virginia now joins 34 other states that have made texting/emailing while driving a primary offense.

Going forward, Virginia should only allow the hand's free use of an electronic device while driving. A hand’s free rule is easier to enforce and safer. Numerous studies have shown that distracted driving has become the cause of most accidents in the U.S. This issue not only affects our safety on the highways, but it affects our pocket books. Every fender bender not only causes more traffic delays but it increases our premiums. I hope to convince my colleagues to move in that direction next year.

It is an honor to serve as your delegate.