Carolina Criminal & DUI Lawyer Blog
Is it Legal? Can I Dial a Number? What if I’m stopped at a Light? What is the Law about Texting and Driving?
The preliminary numbers aren’t good. Texting while driving may soon be a leading cause of motor vehicle fatalities – Bill Powers
According to the National Highway Traffic Safety Administration NHTSA:
- Drivers Texting or using handheld devices is increasing**
- Drivers aged 16 -24 utilize mobile devices at higher rates
- 23% of drivers in FATAL CRASHES are in their 20’s
- 27% of those fatalities are Distracted Drivers
- 38% of the Distracted Drivers were using Cell Phones
- 2014 – 3,179 people killed due to Distracted Driving
- 2014 – 431,000 people injured due to Distracted Driving
**PLEASE NOTE: DUE TO THE GENERAL UNWILLINGNESS TO ADMIT TEXTING WHILE DRIVING AND DISTRACTED DRIVING, METRICS ARE ASSUMED TO BE SKEWED AND OTHERWISE FALL SUBSTANTIALLY SHORT OF ACTUAL INCIDENCES
What is Distracted Driving?
Distraction is anything that diverts the driver’s attention from the primary tasks of navigating the vehicle and responding to critical events – National Highway Traffic Safety Administration
Examples of Distracted Driving include but are not limited to:
Is it Illegal to Talk on the Phone While Driving?
See More: North Carolina Motor Vehicle Laws 2016
The North Carolina General Assembly draws a distinction between ordinary motorists and those operating buses or “motor carrier” drivers. Assumedly the logic is that the type of vehicle and/or the number of passengers potentially harmed by Distracted Driving is substantially increased for such drivers.
One would expect the laws in North Carolina to be updated, as it is becoming increasingly apparent that Distracted Driving, which necessarily includes Text Messaging, is a substantial problem both nationally and within the Pine State.
The North Carolina General Assembly convenes in January 2017 for what is referred to as the Long Session. If you would like to discuss Distracted Driving with your state House or Senate Representative(s) go to: Who Represents Me?
The present state of the law in North Carolina allows for Cell Phone usage, with some important exceptions.
It is UNLAWFUL to drive in North Carolina and:
(1) Manually enter multiple letters or text in the device as a means of communicating with another person; or
(2) Read any electronic mail or text message transmitted to the device or stored within the device, provided that this prohibition shall not apply to any name or number stored in the device nor to any caller identification information.
What are the Penalties for Texting and Driving in North Carolina?
As referenced, the North Carolina General Assembly has set forth the definitions and punishments for violating N.C.G.S. §20-137.4A.
What will most certainly cause some level of consternation with Insurance Carriers, one cannot be assessed with Drivers License Points or Insurance Surcharge for failing to comply with the law.
Furthermore, the Legislature has reached into the Court System and in effect, Juries and the Judicial Branch, instructing that Texting While Driving “shall not constitute negligence per se.”
That is surprising and may be subject to additional discussion in Raleigh on Jones Street.
Powers named Charlotte Criminal Defense Lawyer of the Year by Best Lawyers
One should NOT assume the only penalties are those associated with a Class 2 Misdemeanor – Bill Powers
Involuntary Manslaughter: Is It Coming?
While a Class 2 Misdemeanor is a Criminal Offense, one would be remiss in assuming it’s “no big deal.”
Indeed, the laws in North Carolina involving fatalities associated with repeatedly bad actions or behavior may fall under one or two of the most serious criminal, felony offenses in North Carolina: Murder and Manslaughter.
See More: What Happens in Drunk Driving Fatality Cases?
See More: Definition of Murder in North Carolina 2016
What is Malice in North Carolina?
The attorneys at Powers Law Firm PA are experienced handling Traffic related Homicides in North Carolina. And while we regularly appear in court, serving as Counsel of Record for issues involving, Murder, Manslaughter, DWI Impaired Driving fatalities, thus far we yet to hear of ANY offense in North Carolina involving solely dangerous use of a cell phone or texting to establish the “malice” necessary for 2nd Degree Murder.
You may have heard of the term mens rae, which is Latin referring to a “guilty or evil mind.”
The prima facie elements of 2nd Degree Murder in North Carolina are:
- Unlawful Killing
- Human Being
- With MALICE
- Without Premeditation
- Without Deliberation
State v. Vassey, 154 N.C.App. 384, 390, 572 S.E.2d 248, 252 (2002), disc. review denied, 356 N.C. 692, 579 S.E.2d 96, cert. denied,357 N.C. 469, 587 S.E.2d 339 (2003).
The North Carolina appellate courts, specifically the Supreme Court has stated:
Intent to kill is not a necessary element of second-degree murder, but there must be an intentional act sufficient to show malice
North Carolina v. Brewer, 328 N.C. 515, 522, 402 S.E.2d 380, 385 (1991)
North Carolina v. Lang, 309 N.C. 512, 524-25, 308 S.E.2d 317, 323 (1983) (
Intent to Kill is not always required for charges alleged Murder in the Second Degree, there does need to be some intentional act that would indicate malice and that act was the proximate cause of the fatality.
Automobile Fatalities in North Carolina
The Burden of Proof requires the state prove, Beyond a Reasonable Doubt “that defendant had the intent to perform the act of driving in such a reckless manner as reflects knowledge that injury or death would likely result, thus evidencing depravity of mind.”
North Carolina v. Rich, 351 N.C. 386, 395, 527 S.E.2d 299, 304 (2000)
It is important to note, not all forms of recklessness are a legal basis for Second Degree Murder charges.
[The distinction between `recklessness’ indicative of [second degree] murder and `recklessness’ associated with manslaughter `is one of degree rather than kind – United States Supreme Court
United States v. Fleming, 739 F.2d 945, 948 (4th Cir.1984), cert. denied, 469 U.S. 1193, 105 S. Ct. 970, 83 L. Ed. 2d 973 (1985)).
Without more, “culpable negligence” may be the basis of a charge for Involuntary Manslaughter.
Culpable Negligence is:
- Thoughtless Disregard of Consequences
- Heedless Indifference to
- Rights and Safety of Others
North Carolina v. Wade,161 N.C.App. 686, 690, 589 S.E.2d 379, 382 (2003)
North Carolina v. Weston, 273 N.C. 275, 280, 159 S.E.2d 883, 886 (1968)), disc. review denied,358 N.C. 241, 594 S.E.2d 33 (2004).
Depravity of Mind
With respect to “the level of recklessness required for second-degree murder,” we must not confuse “such a high degree of recklessness with mere culpable negligence.” North Carolina v. Rich, 351 N.C. at 394, 527 S.E.2d at 303.
“[W]hen that negligence is accompanied by `an act which imports danger to another [and] is done so recklessly or wantonly as to manifest depravity of mind and disregard of human life,’ then it is sufficient to support a second-degree murder charge.” Id. at 395-96, 527 S.E.2d at 304 (quoting State v. Trott, 190 N.C. 674, 679, 130 S.E. 627, 629 (1925)).
North Carolina v. Mack, 697 S.E.2d 490 (2010)
Malice and Impaired Driving in North Carolina
Second Degree Murder “malice” has been found in cases involving DWI Impaired Driving; but, there are other factors that may be considered as well.
North Carolina v. Bethea, 167 N.C.App. 215, 219, 605 S.E.2d 173, 177 (2004), cert. denied, 362 N.C. 88 (2007)
Malice has been found when the driving was found to be extremely dangerous with:
- Speeding 100+ Miles Per Hour
- Running through Stop Signs and Red Lights
- Going into oncoming traffic on multiple occasions
- Turning Off Headlights (when it was dark)
- Attempting to Elude Police
North Carolina v. Gainey, 292 N.C. 627 (1977)
North Carolina v. Jones, 32 N.C. App. 408 (1977)
An intentional, willful or wanton violation of a statute or ordinance, designed for the protection of human life or limb, which proximately results in injury or death, is culpable negligence – NC Supreme Court
North Carolina v. Cope, 204 N.C. 28, 167 S.E. 456 (1933)
North Carolina v. Stewardson, 32 N.C. App. 344, 232 S.E.2d 308.
See More: Serious Felony Investigations by Law Enforcement
Experienced Legal Advice in North Carolina – Traffic and Criminal Law Attorneys
The attorneys at Powers Law Firm PA help people get through difficult times.
We’re here to help.
If you or a loved one has been charged with something as serious as Murder or Manslaughter, please first invoke your right to silence and thereafter seek legal counsel immediately.