In May of this year, a 20-year-old woman from North Dakota struck the rear of a vehicle traveling in front of her on the highway between Fargo and Grand Forks, North Dakota. In that vehicle was 89-year-old Phyllis Gordon, along with several of Mrs. Gordon's family members. Mrs. Gordon was injured in the accident, and ultimately died at the scene.
Earlier this week, the young woman appeared in court, having been indicted for the felony offense of negligent homicide. After the accident, the police conducted an investigation. According to the criminal complaint, it was discovered that the young woman was traveling roughly 85 miles per hour when she struck the car in which Mrs. Gordon was riding. There was no evidence that she attempted to slow down or otherwise avoid a collision. Perhaps most damning is the evidence that the young woman appeared to have been checking the Facebook application on her cell phone at the time of the accident.
In North Dakota, where she will stand trial, negligent homicide is a felony offense. As a result, if the young woman is convicted, she faces up to five years in prison.
In Georgia, according to the strict letter of the law, circumstances like these could give rise to an indictment for homicide by vehicle in the second degree – a misdemeanor offense. The second degree homicide by vehicle applies in a case where an individual is engaging in a criminal act while driving (other than DUI, reckless driving, improper passing of a school bus, or hit and run) which causes the death of another person. The statute mandates that a person convicted of second degree vehicular homicide be sentenced as a misdemeanor offender.
However, it is my opinion that, with the proliferation of mobile phones and the resulting rise in “distracted driving” accidents, Georgia courts have begun feeling increased political pressure to treat such cases as felonies. I predict that the courts will continue to find innovative ways to do so.
One particularly useful tool that prosecutors could use to bump a case like the North Dakota case up into “felony” territory is the reckless driving statute, O.C.G.A. 40-6-390. Reckless driving (along with DUI, hit and run, and improper passing of a school bus), in conjunction with an accident that causes the death of another person, may result in an indictment for first degree homicide by vehicle – a felony offense. The reckless driving statute requires the state to prove only that an individual drove his vehicle “in reckless disregard for the safety of persons or property.” This nebulous definition could apply to any number of behaviors or combinations thereof; it is easily conceivable that driving 85 miles per hour while checking Facebook could be considered “reckless driving,” thereby giving rise to a felony instead of a misdemeanor.