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Lopez & Humphries P.A. Attorneys at Law
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TEXTING AND DRIVING: CRIMINAL OR JUST PLAIN STUPID??
August 27, 2015 Kevin Humphries
I came across an article today that said some Florida state lawmakers are seeking to have penalties increased for drivers who cause fatal accidents while texting behind the wheel.
At first, I thought “sure, sounds fair enough.” But the more I thought about it….the more I disagreed with my initial reaction. Don’t get me wrong, I do not encourage or endorse texting-while-driving. It is not smart and statistics show it is quite dangerous.

The lawmakers want to charge motorists who cause a death while texting with “Vehicular Homicide”. This crime can be found in Florida Statutes Section 782.071 and this is what it states:
“Vehicular homicide” is the killing of a human being, or the killing of a viable fetus by any injury to the mother, caused by the operation of a motor vehicle by another in a reckless manner likely to cause the death of, or great bodily harm to, another.

As a Lakeland criminal defense attorney, the term “reckless manner” is what causes me concern. In Florida it is not illegal to text while driving a vehicle. Again, I am not condoning it but am reiterating that it is stupid…not illegal. So is it fair to make it illegal only if you are involved in an accident that results in a death? That is like making drinking and driving legal, no matter how impaired a person is, unless they are involved in a fatal accident.
Some drivers may text and never encounter any problems while other drivers may text and hit a mailbox or rear-end another vehicle. Unfortunately, numerous drivers are involved in more serious accidents that result in death while texting behind the wheel. The act, texting while driving a car, is the same. The result is not. In criminal law, there has to be an “act” that is illegal to commit. A lawful act that is done with an unfortunate and unanticipated result is called an accident, not a crime.

So the real questions become: Is texting while driving reckless? Is texting while driving likely to cause death or great bodily harm to another? From a criminal defense standpoint I have to say the answer is no. Again, it is not smart but it is not criminal.

Now, if texting while driving was banned in Florida that would be a whole different ballgame. Then proponents of this bill would have a better argument to enhance the penalty for texting motorists involved in fatal crashes if the act of texting behind the wheel were in and of itself illegal. It would then be more like a DUI charge. In Florida, driving a motor vehicle while one’s normal faculties are impaired by alcohol or a controlled substance is illegal. The charge of driving under the influence is a misdemeanor. But other factors, if proven, enhance the penalties of a DUI charge. For example, if a person found to be driving under the influence causes or contributes to causing serious bodily injury to another person, the charge and penalty is enhanced. The charge and penalty will be enhanced even more significantly if the driver causes or contributes to causing the death of another person.

Generally for a crime to occur there must be a criminal act and criminal intent. The bill that is being proposed neglects the essential elements of any crime. Until Florida makes the act of texting while driving criminal, this bill would be unconstitutional and would criminally punish the unfortunate result of a non-criminal (read: legal) act. Therefore, until the day the act becomes a criminal act, the answer has to be “just plain stupid.”

At Lopez & Humphries, P.A. we are caring and compassionate lawyers that are also sharp, tenacious advocates for the injured and the accused. It is important to recognize the wealth of trial experience that the firm possesses. Melodie Lopez and Kevin Humphries have combined trial experience in more than 100 jury trials, 500 trials before court, 500 Social Security Administration trials and over 50 Workers’ Compensation trials. The attorneys of Lopez & Humphries, P.A. have had their own respective trials featured on national media where they have been described as “experienced” and “excellent” by hosts and commentators on their trial performance.

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