Correction:

An earlier version of this story inaccurately reported Brendan Harold’s name. The story has been corrected.

Texting while driving law and Virginia legislature criticized by Fairfax judge

Tracy A. Woodward/THE WASHINGTON POST - A photo of Kyle Rowley sits on a table in the family room of Carl and Meryl Rowley's home. Kyle was killed in an accident in 2011.

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.

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.

No witnesses were found who saw the moments before the crash, and Gage, who was injured in the wreck, told police that he could not remember it. Prosecutors’ best evidence were the cell records and emergency call.

Gage was later charged with reckless driving, which is punishable by up to a year in jail. He was not charged with the less-serious offense of texting while driving.

During Gage’s trial, his attorney moved to have the charge dismissed, saying that prosecutors had presented no evidence of reckless driving.

Gallahue concurred, saying that texting alone generally was not sufficient to prove such a charge because the legislature had not specifically included texting while driving in the reckless driving law and had defined it as a minor traffic infraction. Prosecutors would also have to show that Gage was speeding or otherwise operating his vehicle in an unsafe manner that was endangering life, limb or property to continue with the case.

Fairfax County Commonwealth’s Attorney Ray Morrogh disagreed with Gallahue’s interpretation of the law, as did some others, but said that Gallahue had reached a reasonable conclusion given how the laws are written.

Morrogh said he thought Virginia’s texting-while-driving law actually made it more difficult to mount Gage’s case — not less. He thinks there is no question that texting while driving would have been considered reckless driving before the legislature made it a traffic infraction. One solution: Repeal it all together.

“Without that statute, we would have had a greater chance of getting to trial,” Morrogh said.

Gage’s attorney, Brendan Harold, said it was important to remember that the courts cleared Gage. And prosecutors were quick to point out that the trial never got to the stage when Gallahue actually weighed Gage’s guilt or innocence.

“This is a tragic event. Everyone’s hearts go out to the family,” Harold said. “If the punishment for texting were more severe, perhaps prosecutors would have gone for that charge.”

Del. Scott A. Surovell (D-Mount Vernon), who represented the Rowley family in a civil suit over the crash, said he will sponsor a bill to specifically classify accidents caused by handheld devices as reckless driving.

“This law is a classic example of unintended consequences that can flow from not being careful drafting criminal statutes,” Surovell said. “Beyond that, it’s pretty apparent there is a serious problem out there with people being distracted while using handheld devices. We need to deal with it, not put it off.”

That could be easier said than done. Eight distracted driving bills died in a Republican-dominated Virginia House of Delegates subcommittee this year. Before this case, many Republican lawmakers thought that the state’s reckless driving law was sufficient to handle more serious texting-while-driving cases and had resisted strengthening the law.

However, the chair of the subcommittee, Del. Ben L. Cline (R-Rockbridge), said he would be open to the changes proposed by Surovell.

Virginia’s neighbors have stiffer laws when it comes to distracted driving. Maryland and the District ban handheld cellphone use altogether. Nationally, 38 states ban texting while driving, like Virginia, according to the Insurance Institute for Highway Safety.

The National Transportation Safety Board has called for a nationwide ban on cellphone use behind the wheel.

It’s not the first time Virginia’s texting-while-driving law has been criticized. In 2010, Fairfax police turned to an older law to tackle distracted driving when they became frustrated with enforcing the texting ban.

The problem: The law bans texting and looking at e-mails but allows drivers to use a phone-based GPS device. A driver can simply tell an officer that he or she was doing the permitted activity to beat a ticket.

Virginia’s texting law is also a secondary offense, meaning officers can charge a driver only if they have pulled them over for something else. That means it is a poor deterrent, said Sen. George L. Barker (D-Fairfax), who during the next legislative session plans to sponsor a bill to make it a primary offense, as he has done in the past. Few texting-while-driving citations are handed out each year, he said.

“Our laws are clearly not as strong as other states,’ ” Barker said.

Meanwhile, the Rowley family said their own son’s case might have had a silver lining if Gage’s trial had gone forward. Instead, they feel abandoned by the law.

“This case could have sent a message to the system that this kind of behavior should not be tolerated,” said Carl Rowley, Kyle’s father. “It was kind of like the laws were in his favor, and I don’t understand how that could be.”

Tom Jackman contributed to this report.

 
Read what others are saying