Missouri law lags behind risks of distracted driving

Few drivers in the state have been ticketed or charged since a 2009 law made it an infraction for anyone 21 and under to text while driving
Friday, February 15, 2013 | 6:00 a.m. CST; updated 1:07 p.m. CST, Thursday, March 7, 2013
Drivers use their cellphones in their vehicles on Elm Street and College Avenue in Columbia.


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UPDATE: This story has been revised to reflect more recent data from the Office of State Courts Administrator related to the frequency of ticketing for texting while driving.

COLUMBIA — Loretta Larimer had no control over the crash that killed her.

It was Sept. 26, 2011, and the 72-year-old former airplane mechanic was driving on a road near the Kansas City International Airport on a craft supply shopping trip with her granddaughter in the backseat.

Up ahead, she saw a white Honda SUV swerve between lanes and head toward her, the 10-year-old granddaughter later told police.

Rachel Gannon, 16, was behind the wheel of the SUV. Moments before, Gannon’s passenger had told her to stay focused. The music was up too loud, and her eyes were on her cellphone, the young man later told police. Gannon was texting and veered off the road.  

“Rachel!” he said.

Gannon dropped her phone, and steered into the opposite lane — and into Loretta Larimer’s car.

Larimer's maroon Nissan Altima crumpled like a can of soda. Soon after, the grandmother who had traveled the world, fixed airplanes and kept the church’s books died at the hospital. Her granddaughter was hospitalized for injuries.

“Just a senseless death,” said John Larimer, her son.

Distracted driving has become a bigger risk for everyone on the road, but enforcement of safe driving in Missouri has not kept pace. Texting is one activity that can take a driver’s attention during critical moments. Legislatures across the country, including Missouri's General Assembly, have made efforts to rein it in.

Still, few drivers in this state have been ticketed for texting behind the wheel, and even fewer have been charged in criminal cases. Missouri prosecutors are rarely able to prove texting caused a crash beyond a reasonable doubt.

Scores of studies have analyzed the dangers of distracted driving, and the research suggests you’re more likely to cause a crash if you’re using a phone, though no one agrees how much more likely, according to the Governors Highway Safety Association. Fewer studies have examined texting and driving specifically, but a 2009 study by the Virginia Tech Transportation Institute found it made crashes 23 times more likely for commercial truck drivers. One British study found that texting behind the wheel slowed driver response times by 35 percent, compared with 21 percent for marijuana and 12 percent for alcohol, according to research sponsored by the Royal Automobile Club Foundation for Motoring. 

Since 2002, Missouri has experienced a decline in the number of traffic crashes, but the number of crashes involving cellphones has increased, according to a Missourian analysis of statewide crash statistics.

Missouri law is among the most lax in the nation when it comes to drivers and their phones. Most U.S. states restrict both talking on cellphones and texting to some extent; 10 states ban all hand-held cellphone use outright. Missouri allows cellphone conversations at the wheel and treats texting as an infraction for drivers 21 and under.

*Since the Missouri law took effect in 2009 until February 2013, an average of slightly less than four people a month were ticketed or charged with texting and driving in Missouri.

Law loose and rarely enforced

From the beginning, critics worried the law would be weak, and data from Missouri courts back up their case.

“It’s really difficult to enforce the law right now with the age limit,” Platte County Prosecutor Eric Zahnd said. Law enforcement officers have to first see drivers texting and then guess if they’re under 22, he said.

It was two years after the texting and driving law passed before anyone in Platte County, north of Kansas City, was charged with the infraction, court data show.

The spring after the fatal September 2011 crash, Gannon appeared in court and pleaded guilty to manslaughter, assault and texting while driving. Because of her age, Missouri’s texting and driving law applied to her. A judge sentenced her to two days in jail and about two and a half months under house arrest. Gannon also received 300 hours of community service and five years' probation.

Gannon and her passenger told police she had been looking at her phone and texting, which gave the prosecutor enough evidence to charge her with a felony of involuntary manslaughter.

“It’s relatively rare that we have cooperative eyewitnesses inside the car,” Zahnd said. “It was extraordinarily helpful in the case.”

*One person in that county has been charged with texting and driving since May 2012.

Zahnd said he suspected texting in another case, but he couldn’t prove it without an eyewitness. Even with phone records, synchronizing text time and crash time is tricky, he said.

For example, Zahnd had evidence that a driver’s phone had received texts, but the driver denied she was texting and driving. Zahnd didn’t have proof she was behind the wheel at the time the texts took place.

Further, accident times are close estimations based on when 911 calls are made and the information callers give.

Since the 2009 law took effect, in Boone County seven people have been punished for texting and driving — all but one were fined $20.50. One young man received the maximum fine of $200 after he took a left turn into a utility pole, and admitted to police he was texting at the time.

The Boone County prosecutor dismissed texting-and-driving charges in two other criminal cases involving drinking and driving.

“It is not uncommon that we would dismiss a lesser charge in exchange for pleas of guilty to the higher charge,” said Tracy Gonzalez, first assistant prosecuting attorney for Boone County. “It can be part of our negotiations.”

No one has been punished for texting and driving in nearly half the counties in Missouri, according to court data. Until the first ticket was issued in the county in January, Randolph County was among them.

“I haven’t had the opportunity,” Randolph County Prosecuting Attorney Mike Fusselman said.

Fusselman said either officers haven’t caught anyone or the driver denied texting and got away because of lack of evidence to the contrary. Rural counties with isolated roads create fewer opportunities for law enforcement officers to witness texting and driving, he said.

But Fusselman tried in vain to make the connection between texting and a fatal crash.

In 2010, Jeffrey Fleming hit and killed an Amish man driving a buggy on U.S. 63. Fusselman used phone records to attempt to show texting took Fleming’s attention from the road and charge him with a felony of involuntary manslaughter. After all, the crash happened in daylight — just before 11 a.m. — on a straight and level road.

“There was every opportunity and no explanation for not seeing what was clearly in front of him,” Fusselman said.

No brake or swerve marks marred the asphalt. Fusselman believes the court could have fairly inferred that Fleming’s mind was elsewhere, but judges and juries are uncomfortable coming down hard when records leave a gap in time and room for interpretation.

Fleming’s phone records show he sent a message at 10:50 a.m. The Missouri State Highway Patrol pegged the collision at 10:51 a.m., according to the accident report. Fleming’s carrier, AT&T, rounds texts sent or received to the nearest minute.

Fleming denied texting or talking on the phone at the time of the crash. In a witness statement, he wrote that he entered the highway, checked his phone for missed calls and set his cruise control.

“The next thing I can remember was hitting the buggie,” Fleming wrote. “I know I didn’t see him or remember taking my eyes off the road. It was just there when I came up on him.”

His attorney argued that as tragic as the crash was, Fleming did not act with “criminal negligence,” which is defined as deviating from the behavior of a reasonable person in the situation and disregarding “a substantial and unjustifiable risk” he could kill someone.

Fleming was convicted of the class A misdemeanor of careless and imprudent driving.

A bigger legal question looms over cases involving texting, driving and tragedy. Being distracted by your phone while driving shows you aren’t paying attention, but judges and jurors hold different opinions on how to define that behavior under the law.

More severe crimes require proving more irresponsible behavior. Recklessness is the highest degree of irresponsible behavior in driving cases, followed by criminal negligence and carelessness and imprudence. The distinctions between definitions are subtle and subjective.  

“It’s one of the toughest areas in the law,” Zahnd said. 

Changes sought in law

Every year legislators have sought to expand the anti-texting and driving law or to ban hand-held cellphones while driving. 

Last year, three bills in the Missouri House of Representatives stalled in committee, including one sponsored by Rep. Michele Kratky, D-St. Louis.

“It’s like they’re driving blindfolded,” she said of drivers who text at the wheel.

Last month, Kratky introduced a bill banning texting and driving for all ages. Another recently reintroduced bill would ban all hand-held cellphone use.

Previous bills have been held up in the Crime Prevention and Public Safety Committee. Kansas City-area Rep. Nick Marshall, R-Parkville, the committee's vice chair in 2011 and 2012, has opposed expanding texting and driving restrictions. 

Marshall said he agrees that texting while driving is a more dangerous way to drive.

“The question is, does that translate into accidents?” Marshall said. He’s not convinced that banning texting results in fewer crashes.

According to the Governors Highway Safety Association, no evidence has been found to show a link between banning cell phones and reducing collisions.

A ban "decreases the rights of citizens or restricts it," Marshall said.

Other lawmakers have argued that distraction is more than just texting and eludes fair regulation.

Boone County Prosecuting Attorney Dan Knight supports reclassifying texting and driving as a misdemeanor, instead of an infraction, and removing the age restriction.

A more comprehensive law would allow prosecutors to make a more powerful case, Zahnd said. Even if a texting driver couldn't be charged with a felony, at least the driver could get a ticket for texting and driving, he said.

In October, Zahnd was elected president of the Missouri Association of Prosecuting Attorneys, which represents the state's 115 prosecutors.

“It’s one of my personal priorities to expand the texting and driving law,” Zahnd said.

A tragic crash in Boone County

Nicole Buffa was about to have the worst experience of her life.

At home in Lake St. Louis, the then-MU sophomore, who usually tweets about pop culture, hangovers and her friends, wrote, “Not wanting to go back to como tomorrow to be productive.. #nevergonnagrowup”

The next day, Sept. 25, 2011, she put on business clothes and drove down Interstate 70 in a 2000 silver Lexus ES 300 to attend a student event in Columbia.

Buffa said she had stopped at a Taco Bell in Kingdom City to get more information about the event from a friend, and says she remembers “not texting a lot after Kingdom City.”

Buffa got back on the road and was driving 70 mph, the speed limit, when she neared the Route Z exit, about six miles east of U.S. 63.

Buffa said she looked down at the MapQuest directions her mom had printed and looked back up. Buffa said the van in front of her had slowed down in the meantime. That’s when she swerved, she said. 

Audra Snyder, 43, had been driving a gold Chevy van along I-70 in the opposite direction that clear afternoon. A mother of four sons, Snyder bred golden retrievers and had three dogs with her on the drive.

Snyder’s mother, Pat Demery, was shocked to learn what happened next.

“I had talked to her that day, and the last thing she said was, ‘I love you, Mom,’” Demery said.

The Lexus, with Buffa at the wheel, crashed through the cable barrier in the median and into oncoming traffic, smacking into Snyder’s van and rotating 180 degrees.

Ambulances took Buffa and Snyder to University Hospital, where Snyder was pronounced dead. Buffa, who was not wearing a seat belt, according to court documents, was severely injured. The crash broke her foot, bruised her lung and ruptured her spleen. She remained in the hospital until Oct. 5, 10 days after the crash.

Seven months later, Buffa pleaded guilty to careless and imprudent driving, a class A misdemeanor.

The Boone County Prosecuting Attorney's Office and Buffa’s defense attorney agreed to have a six-month jail sentence suspended on condition that Buffa complete 120 hours of community service and attend a safe driving course, as part of two years' probation.

Buffa is suing the Missouri Department of Transportation, alleging that the cable barriers should have prevented her from crashing through into oncoming traffic.

Buffa’s phone records were subpoenaed as part of a Missouri State Highway Patrol investigation and forwarded to the Boone County prosecutor’s office. They show she texted back and forth nearly every minute with three numbers from 12:06:56 p.m. to 1:02:36 p.m. Buffa said she got on the road about noon. The crash happened at 1:04 p.m., according to the Missouri State Highway Patrol accident report.

Knight, the Boone County prosecutor, acknowledges Buffa’s phone records show a lot of texting, but he said no witnesses saw her do it, the phone was never seized as evidence, and he never received proof from law enforcement that those texts were sent in Boone County.

“Unfortunately, this would not be sufficient proof to prove that at the time that she lost control of her car, that she was either looking at a text message or that she was typing it,” Knight said.

Buffa,who was 19 at the time of the crash, was not charged with texting and driving.

“Texting wasn’t the cause of the accident,” Buffa said. She says the crash wouldn’t have happened if she wasn’t so “frantic” about getting to the event on time.

“I just wish I had left earlier and been more organized and known the directions for sure before I left,” she said.

The Missouri State Highway Patrol cites inattention as a leading cause of crashes.

“It’s not just cellphones anymore,” said Sgt. Mitch Heath, now in his 27th year on the patrol. Programming a GPS, swapping CDs, toying with an iPad … all of them are distractions that threaten drivers. And new cars are being equipped with even more potential distractions for drivers, including app-connected dashboards.

“If you sit at an intersection today, you will see how many activities there are that cause a driver to be inattentive,” Heath said.

Loved ones lost and remembered

After their loved ones were killed, Audra Snyder and Loretta Larimer’s families created Facebook tributes. Photos of Larimer on a European holiday. Photos of Snyder with her sons. One with her nose covered in green cake frosting, a family birthday tradition. Droves of comments.

“We will, forever, cherish the memories,” Snyder’s aunt wrote. “From the time you were born, to the running around in diapers, to having hair that was out to wherever, to the lovely, sweet young woman you became.”

These days, Buffa said she takes driving more seriously since the crash.

“I would never want anything like that to happen again,” Buffa said. 

On the anniversary of Snyder’s death, Buffa tweeted again, “A year ago today was the worst experience of my life & heaven gained an angel. Life is too short to be anything but happy. RIP Audra Snyder.” 

Supervising editors are Mark Horvit and Katherine Reed.

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