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