Texting while driving law and Virginia legislature criticized by Fairfax judge

One night in May 2011, Jason Gage, an Alexandria man driving on a road in the Dranesville community of Fairfax County, struck and killed a college student named Kyle Rowley.

Authorities later determined that Gage had probably opened a text message about the time of the crash. They charged him with reckless driving.

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But when the case went to trial in a Fairfax County court last month, Judge Thomas E. Gallahue ordered the charge against Gage dropped, his texting notwithstanding.

The reason: A 2009 Virginia law makes texting while driving a minor traffic infraction punishable by a maximum fine of $20, so texting alone could not be proof of reckless driving.

Gallahue, in an unusual move from the bench, left no doubt where he thought the problem resided: Virginia’s General Assembly.

“I think you are driving recklessly,” Gallahue said, according to a trial transcript, “but the legislature has said texting is something way less than that.”

The outcome stunned Rowley’s parents and prompted them to call for a change in Virginia law so a similar situation is not repeated. The call has also been picked up by a local lawmaker and Fairfax’s top prosecutor, who said the case was likely the first of its kind before a Virginia court.

Their concerns come as lawmakers across the country are pushing to strengthen distracted driving laws as research mounts showing just how dangerous activities such as texting behind the wheel are. One Virginia Tech Transportation Institute study found that texting drivers are 23 times more likely to crash.

Rowley, who had dreams of being a chef and loved soccer and skiing, was just sorting out his life, his parents said. He had attended Herndon High School and had finished his freshman year at Coastal Carolina University.

“It’s a miscarriage of justice to feel your child was killed and there was no justice or punishment,” said Meryl Rowley, Kyle’s mother. “It was just too much to bear.”

Rowley was driving home from a summer job the night of May 15, 2011, when his car ran out of gas on Route 7 near Dranesville Manor Drive, his parents said.

Prosecutors said that Rowley flipped on his emergency flashers, got out of the car and began pushing it off the roadway about 10:30 p.m. That stretch of Leesburg Pike is straight and well-lit.

One driver easily maneuvered around Rowley, but shortly after that, Gage’s Kia Amanti plowed into the back of Rowley’s Mazda and then hit Rowley while he was still pushing the car, prosecutors said. The rear of Rowley’s car was crushed from the force of the impact, and he died at the scene.

The driver who had maneuvered around Rowley saw the aftermath of the crash in his rearview mirror a split-second after it happened and called 911, prosecutors said.

Detectives found no signs of skid marks on the roadway, and alcohol and speed were ruled out as factors in the crash, prosecutors said. When detectives examined Gage’s cellphone records, they found that numerous text messages were opened during his drive, prosecutors said.

Detectives were able to give a reasonable estimate of the time of the crash based on the emergency call from the scene, prosecutors said. In his ruling, Gallahue highlighted cellphone records showing that a text message was opened on Jason Gage’s phone at 10:31 p.m., the exact time it was estimated the 911 call was placed about the crash.