Kulesh’s, Kubert’s, and Bolis’ Law: Cell Phone Use and Recklessness

Posted by: New Jersey Criminal Lawyer, Jeffery Hark

On July 18, 2012, a new law was approved which dramatically alters the interaction between illegal cell phone use and vehicular homicide prosecutions. Assembly Bill 1074 passed both the New Jersey Assembly and Senate on June 21 and 28 respectfully. This new law creates an inference that individuals who cause death or bodily injury to another with a vehicle while illegally using a cell phone acted recklessly.

Specifically, A1074 amends the text of N.J.S.A. 2C:11-5, which governs Death by auto or vessel charges. Assemb. B. 1074, 215th Legislature 2:19-23. Under 2C:11-5, “criminal homicide constitutes vehicular homicide when it is caused by driving a vehicle or vessel recklessly.” N.J. Stat. Ann. §2C:11-5 (West 2012). Under A1074, “Proof that the defendant was operating a hand-held wireless telephone while driving a motor vehicle in violation of section 1 of P.L. 2003, c.310 (C. 39:4-97.3) shall give rise to an inference that the defendant was driving recklessly.” Assemb. B. 1074, 215th Legislature 2:19-23. The bill makes a nearly identical alteration to N.J.S.A. 2C:12-1, the New Jersey criminal assault statute. The alteration to the Assault statute similarly creates an inference of recklessness for illegal cell phone use for those cases where driving the “inferred reckless” driver causes only bodily injury rather than death. Assemb. B. Substitute 1074, 215th Legislature 6:34-38. N.J.S.A. 39:4-97.3 generally prohibits the use of a hand held cell phone while driving save in certain emergency circumstances.

Effectively, this alteration to the law treats cell phone use as the equivalent of driving while intoxicated. Under N.J.S.A. 2C:11-5, “[p]roof that the defendant was driving while intoxicated in violation of [the DWI statute] or was operating a vessel under the influence of alcohol or drugs in violation of section 3 of P.L. 1952, c. 157 (C.12:7-46) shall give rise to an inference that the defendant was driving recklessly.” See Assemb. B. 1074, 215th Legislature 2:15-19. For the purposes of the vehicular homicide and assault statutes, then, the legislature views the usage of a cell phone while driving equal in danger to driving under the influence of drugs or alcohol. This alteration, then, is not only significant in that it expresses the legislature’s negative views of driving while using a hand held cell phone, but also because it may represent the first link in a chain that may well end with cell phone use in general (out of the context of death or serious bodilly injury) being treated in a similar manner as intoxication.

In their statement in support of A1074, the sponsors of the bill state that the purpose of the bill is to “make it easier for prosecutors to obtain convictions for vehicular homicide or assault by auto against a person who illegally uses a cell phone while driving, and, as a result, kills or injures someone. Assemb. B. 1074, 215th Legislature 9:14-17. The sponsors also noted that a conviction for vehicular homicide under the statute carries a sentence of five to ten years and a fine of up to $150,000.00; and that a conviction for assault by auto under the statute carries a sentence of up to 18 months with a 10,000 fine. Id. 9:23-30.

The new law, which has been named the “Kulesh’s, Kubert’s, and Bolis’ Law” after the victims of several “reckless” drivers who had been using their cell phones, greatly raises the potential penalties for those who become involved in accidents because of their cell phones. The act, which went into effect upon its approval by the State Executive on July 18, 2012, could mean severe penalties for those who choose to use hand held phones and end up causing harm to others. At the very least anyone who causes the death or injury of another while driving and using a cell phone will face a significant further hurtle at trial.