Law Review: Driving and texting leads to six years in prison | TahoeDailyTribune.com

Back to: Opinion

Law Review: Driving and texting leads to six years in prison

Rear-Ended at 80 MPH

Jorene Ypanto Nicolas was driving northbound on the Interstate 405 freeway at about 80 mph in her Prius. Traffic was backed up and at a complete stop for about 20 or 30 seconds. Nicolas crashed directly into the rear of a Hyundai. The driver of the Hyundai died.

Nicolas sent eight text messages and received six text messages, and answered two phone calls in the preceding 17 minutes, and was inputting a text at the time of the accident.

This Will Get Your Blood Boiling

Nicolas was so inattentive that as she was pulled from the passenger side of her vehicle by another driver, she asked, "What happened?" The other driver told her she had "hit someone incredibly fast, and they're not doing well." Nicolas said she had been in a "big hurry" to meet her boyfriend.

Nicolas kept saying, "Where is my phone?" She retrieved her phone from her car and made two more calls. She was on her phone when the California Highway Patrol arrived on the scene.

When the officer asked for her license and registration, she glanced at the officer and "kept talking on the phone." She kept yelling, "Oh, my God, my car." She never asked about the driver she killed.

Six Years in Prison

Nicolas was charged with vehicular manslaughter with gross negligence. After 12 jurors were unable to reach a verdict (11 voted for a conviction and one for acquittal), a second jury convicted her as charged. The trial court sentenced Nicolas to six years in prison. She appealed.

Vehicular Manslaughter

On appeal, the 4th Appellate District of Appeals reviewed the definition of gross vehicular manslaughter, which includes driving with gross negligence, which has been defined as "the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences … more then ordinary carelessness, inattention, or mistaken judgment."

The Court of Appeal noted that Nicolas was constantly using her cellphone and texting leading up to the collision, she approached a typical freeway traffic jam at 80 miles per hour, took no evasive action and was "oblivious to what was right in front of her." She was preoccupied with her phone (a common problem seems to me) and was indifferent to the consequences of her actions as the Court wrote.

The jury's finding of gross negligence was found to be appropriate, as was the judge's six-year prison term.

Conviction Overturned

The jury's verdict and prison term, however, were overturned on a technicality, an erroneous instruction to the jury. The jury had been told that Nicolas' phone use prior to the collision could be proven under a "preponderance of evidence" when the jury should have been told that the pre-collision phone use had to be proven by the prosecution "beyond a reasonable doubt." It may seem minor, but the conviction was overturned.

I can fairly safely predict Jorene Ypanto Nicolas will fare no better in her next trial.

Porter's Take Home

I think you get it.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. His practice areas include: real estate, development, construction, business, HOA's, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at porter@portersimon.com or http://www.portersimon.com. Like us on Facebook.