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January 14. 2014 9:33PM

Police: Texting while driving tough to prove


Limiting or banning the use of electronic devices while driving in New Hampshire was discussed Tuesday by a legislative committee considering several bills. (MICHAEL KRINKE PHOTOGRAPHY)

AMHERST — Though a law against texting while driving has been on the books in New Hampshire since 2010, police say that it's difficult to prosecute.

Two days before Christmas, John Bachman was getting his mail from the box in front of his home on Boston Post Road in Amherst. As Travis Hobbs, 20, of Mont Vernon was driving by, he was allegedly preoccupied with his cell phone and didn't see the retired fire chief before, or after, he hit him. Bachman died of his injuries. Hobbs, who turned himself in later at the police station, told police he thought he had hit a snow bank.

He is charged with negligent homicide and is due back in Milford District Court Thursday.

But Amherst Police Chief Mark Reams said "it is not often that investigators are able to specifically identify texting or cell phone usage as the cause of an accident."

Though cell phone records may reveal that a driver sent or received a text around the time of a crash, it's hard to prove that one caused the other, according to Glen Wilder of the New Hampshire Department of Safety.

"Even if a text was received at the time of a crash, you don't know if the person read it," said Wilder, who compiles statistics on automobile accident fatalities in New Hampshire. "He could have been turning on a radio, lighting a cigarette or eating a sandwich when the text arrived."

According to state law, entering a phone number or name into a cell phone is allowed, but it's a violation to be writing a text message or using two hands to type on or operate an electronic or telecommunications device such as a tablet or a phone. The fine for the violation is $100

Capt. Chris Nervik of the Milford Police Department said that when a crash occurs, officers seize the cell phones of the drivers involved and immediately send letters to the cell phone carriers to get the records of calls and texts.

"There's only a short period of time that those records are available," said Nervik. And once they're gone, they can't be recovered.

With the records in hand, investigators can often determine if texts were being sent or received at or around the time of the accident. But that information is not definitive.

"If I were a defense attorney, I would argue that the texts came in before or after the crash," said Nervik. But it's the judge or jury who gets the final say as to whether that argument is reasonable.

"We present it as part of the overall evidence," Nervik said. "They can argue that they weren't texting, but that doesn't mean they're not guilty."

When it comes to prosecuting drivers for texting while driving when there isn't an accident involved, Nervik said police have an even harder time.

"You basically need a search warrant every time you want to access phone records," he said. "It's so much work just to get the records and to gain access to the phone in order to prosecute a violation-level offense."

Reams said that a wide-ranging law governing cell phone use is needed.

"It is my hope that New Hampshire intends to join other states in considering such measures as a ban on the use of cell phones in any form by novice drivers, or an outright ban on the use of handheld electronic communication devices altogether," he said.

Reams also believes that parents have a responsibility to teach their children not to text while driving.

"We as parents need to also set an example for our children while driving, and make every effort to diminish the perceived importance of these instant communications," said Reams, "that phone call, e-mail, or text message can always wait."

nfoster@newstote.com


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