The Connection

Mount Vernon — At 10:30 p.m. on Sunday, May 15, 2011, 18-year-old Kyle Rowley was driving home from his summer job down Route 7 near the Fairfax County line when his car ran out of gas. He pulled his car into the right-hand lane, turned on his flashers and got out to push his car off the road.

Behind him, Jason Gage approached from the west. About 20 feet from a break in the curb, Gage’s car struck Rowley and his car from behind, throwing Rowley to the middle of the road where another car ran him over. Both cars flipped and rolled. Gage was rendered unconscious, had no recollection of what occurred. No one witnessed the collision.

Gage had 2,000 feet of straight, level pavement on a lit road to see Kyle’s vehicle. There were no skid marks. A forensic analysis of his mobile phone revealed that he sent or received text messages within 15 seconds of the time stamp on the 911 call reporting the collision.

I represented Kyle Rowley’s family in his wrongful death action.

A Fairfax County General District Court Judge found Gage not guilty of reckless driving after noting that the Commonwealth could not prove any driving behavior beyond a reasonable doubt, except for possibly the texting on a hand-held electronic device. Because the maximum punishment for texting while driving under Virginia law is a secondary non-reckless infraction, the judge dismissed the charge, as required under Virginia Law. Jason Gage has never been punished by the state for the death of Kyle Rowley and cannot be under our current laws.

Del. Cline and I believe that Virginia’s laws should be changed and we are introducing a bill in the General Assembly next month.

In 2009, a Virginia Tech Transportation Institute study found that texting while driving takes a driver’s eyes off the road for an average of 4.67 seconds. At 65 miles per hour, that’s equal to driving with your eyes closed for 1.5 football fields.

The same study found that texting while driving increases the chances of a safety-critical driving event by 23.24 or 2,300 percent. By comparison, eating while driving increases the chances by 1.01, smoking 0.97, talking on a phone hands-free 0.44 and talking on a handheld phone 1.04. In other words, while many behaviors while driving are unsafe, texting while driving is exponentially riskier than other behaviors.

Last year, the American Safety Council found that cellphone use was involved in 28 percent of all collisions. Other studies have shown that a majority of Americans under age 30 admit to texting while driving on a regular basis.

In Virginia today, the maximum penalty for texting while driving is $25 for a first offense and $50 for a second offense. No one can be stopped solely because an officer sees him or her using a phone.

Del. Ben Cline and I are proposing changes. Delegate Cline is a Republican from Lexington, a prosecutor and chairman of the Conservative Caucus. Some say we are a political odd couple, but as legislators and attorneys we have been discussing the problems with the existing law for the last six months. We each understand the current law’s deficiencies from different points of view, and believe that there is a need to change current law to make our roads safer. Two weeks ago, the approach in our bill was endorsed by the Virginia Crime Commission.

We have several objectives. First, using a phone for anything other than a phone call should be a primary traffic offense. Second, if such use of a phone is a proximate cause of an accident or injury to person or property, it should be classified as reckless driving. Third, Virginia needs to send a clear message that use of a phone for anything other than a voice call while driving is dangerous behavior that needs to stop.

This legislation will no doubt be modified as the General Assembly works its will. We have already received requests to create exceptions for global position systems (GPS) functions, playing music and law enforcement. We are both hopeful that something will finally happen this year.

It is an honor to serve as your delegate. Please send me your feedback at scottsurovell@gmail.com.