Vol. 22, Number 1

Mark Your Calendars Uncharted Territory: The Anatomy of a NHTSA Drive Sober or Get Texting While Driving Vehicular Homicide Case Pulled Over Crackdown December 13 – January 1, 2014 By Tara Jenswold1

National Association of Part 2 of an article that appeared in Between the Lines Vol. 20, No. 6 (December 2012) Prosecutor Coordinators http://www.ndaa.org/pdf/BTL%20Vol20_No6.pdf Winter Meeting Austin, TX art one of this article included nipulating a phone while driving. On the one December 9 – 11, 2013 19-year-old Stephanie Kanoff’s hand, common sense dictates that texting while version of the events that lead to driving was dangerous. Distracted driving, and Transportation the death of 21-year-old Dylan specifically texting while driving, was certainly Research Board Elefson. She stated that, while driving a buzz topic at the time with public service Annual Meeting home from work, she swerved to avoid announcements warning against the dangers Washington, DC Panother vehicle and struck and killed Elefson. proliferating the airwaves. On the other hand, January 12 – 16, 2014 There was no evidence that Kanoff consumed we were not sure relying on common sense any alcohol or ingested any drugs. However, the would be enough for jurors to convict in this National Sheriffs’ investigation revealed that in the four minutes case because no one had tried a case of criminal prior to the crash, Kanoff was continually tex- negligence based on texting or manipulating Association ting and making calls on her cell phone while a cell phone while driving alone. To convict Winter Conference driving. Emily Thompson, Assistant District Kanoff of criminal negligence, the jury would Washington, DC Attorney for Dane County, and I ultimately have to conclude that manipulating her cell January 20 – 25, 2014 charged Kanoff with homicide by negligent op- phone while driving created an unreasonable eration of a motor vehicle. Though the charge and substantial risk of death or great bodily Upcoming NDAA Courses was not unique in operating a motor vehicle harm. Common sense certainly suggests that for a listing of all upcoming while intoxicated (OWI) cases, this case would such conduct is dangerous but we had to con- NDAA courses, please go to: set precedent in Wisconsin because we based vince a jury that Kanoff’s behavior created a www.ndaa.org the charge solely on texting or manipulating a substantial risk of death. cell phone while driving. The challenge was Since no one had ever litigated a case like we had to convince a jury that texting while this before in Wisconsin, we drew upon our Between the Lines is published driving, not OWI, constituted criminally negli- experience prosecuting impaired driving-related by the National District Attorneys gent conduct. vehicular crimes. In those cases, we knew that Association’s National Traffic Law While most cases are resolved short of trial, jurors used common sense and personal experi- Center. Items may be reprinted some cases are almost guaranteed to go to trial ence to determine that operating a motor vehi- if properly attributed. Please from the moment a charging decision is made. cle while intoxicated or impaired was dangerous provide copies of any reprints to Not only was this a case of first impression, it and resulted in crashes. Nevertheless, we still the National Traffic Law Center. also had a sympathetic defendant so it was ripe often presented expert testimony regarding the For questions or for trial. Therefore, we had to consider early effects of alcohol or drugs on a person’s ability other inquiries, contact the in the case whether we needed an expert who to operate a vehicle safely. Experts tell the jury National Traffic Law Center at could explain the dangers of texting or ma- how driving impaired makes crashes more likely. 703.549.9222 or 1 Tara Jenswold, Deputy Attorney General and Traffic Safety Resource Prosecutor for the State of Wisconsin. Ms. Jenswold [email protected]. and Emily Thompson, Assistant District Attorney for Dane County, WI prosecuted this case. If we often provided expert testimony to juries in impaired driving 88 feet before it came to a stop, and that if Kanoff slammed on the vehicular homicide cases, why would we not do it in this case? brakes as she claimed, Elefson would not have been dragged that Ultimately, we determined that the jury should have more than just distance. Finally, he testified that there was no physical evidence personal experience and common sense to rely upon. We wanted on scene that suggested that another car was traveling in front of the jury to hear from an expert that research and data also dictate Kanoff as she claimed. that manipulating a cell phone or texting while driving is danger- Since this was a case about texting and cell phone manipu- ous and can create a substantial risk of death. This would take an lation, the cell phone evidence was vital to the case. We need- expert that truly understood the dangers of texting and driving. ed to find a way to present the cell phone texting and calling We began our search for an expert by contacting other pros- evidence effectively to the jury. To do that, we first needed to ecutors around the country who specialize in vehicular crimes. understand what evidence we had and what it meant. During the We learned that Dr. Sheila Klauer, a Research Scientist from the pretrial investigation phase, detectives had reviewed the contents Virginia Tech Transportation Institute, had performed extensive re- of Kanoff’s cell phone and taken screen shots of the text messages. search on distracted driving, including serving as the project man- Detectives also downloaded information from the cell phone using ager of the 100 Car Naturalistic Driving Study,2 a groundbreaking the UFED Cellebrite System. Finally, we subpoenaed the service project that captured real time data and video of drivers in the provider records from Sprint Corporation. seconds leading up to crashes or near crashes. The purpose of the At trial, the screen shots of the text messages made for great study was to assess which secondary driving tasks most increased demonstrative evidence. We enlarged the photos to poster size the risk of crashes or near crashes. We contacted Dr. Klauer who prints and presented them to the jury. To show when the texting agreed to review the case and testify at trial. occurred, we introduced the service provider records, which indi- At trial, Dr. Klauer testified to her vast experience in the field cated to the second when texts were sent and received. However, of human factors, including the results of the 100 Car Naturalis- the Cellebrite report gave us some of the most damaging evidence tic Driving Study. While the 100 Car Study did not specifically because it provided the contents of the text messages and broke capture data on texting while driving (the data was captured in the activity down into second increments. Unfortunately, the 2003-2004, before texting was prevalent), Dr. Klauer explained service provider records and Cellebrite Report were lengthy and that the results were still relevant to the case at hand. She indicat- confusing. Therefore, we organized all the phone activity into one ed that two of the top five risky tasks identified were reading and spreadsheet. This allowed us to present all the phone activity to manipulating or dialing a phone, both of which are required for the jury effectively and helped the jurors to understand the extent texting. Texting is a visual manual task, meaning it requires both of Kanoff’s phone activity, succinctly and comprehensively. eyes off the road, as well as some physical manipulation with the In addition to presenting the calling and texting activity, we hands. Such tasks dramatically increase the risk of crash or near also wanted to provide the jury with Kanoff’s actual cell phone. crash when performed behind the wheel, according to Dr. Klauer. Unfortunately, police never took Kanoff’s phone as evidence (they Dr. Klauer also told the jury that anytime a driver’s eyes are off the searched it with her consent) and it was no longer available. So, roadway for any two out of six seconds, the risk of crash is double we subpoenaed a technician from a local retail outlet of Sprint that of an alert driver. She went on to testify that inattentive Corporation and had him bring a cell phone identical to the one drivers look up and down but don’t scan the roadway, and that 90 used by Kanoff. Kanoff owned an LG slide phone, which required percent of crashes and near crashes involve drivers who were look- considerably more manipulation to use than the newer model ing away from the forward roadway just prior to crash. Dr. Klauer touch screen phones. It required two hands to compose a text further testified that drivers 18 to 19 years old were five times message. It also required a considerable amount of manipulation more likely to be involved in an inattentive related crash. to alternate between texting and making calls. This was significant Ultimately, Dr. Klauer opined that Kanoff’s behavior was con- since the evidence showed Kanoff had done this in the moments sistent with that of an inattentive driver in the seconds leading up leading up to the crash. The phone was especially difficult to ma- to the crash. Dr. Klauer concluded that Kanoff was not efficiently nipulate while driving and we were able to demonstrate that for or effectively scanning the roadway at the time she hit Elefson, the jury through the technician. and that if Kanoff had been attentive to the driving task, the crash Using the phone, the technician testified to its features and would not have occurred. demonstrated to the jury how a person would go about com- In addition to Dr. Klauer, we called Trooper Ryan Zukowski posing a text message or placing a call. We specifically asked the of the Wisconsin State Patrol’s Technical Reconstruction Unit as technician to show the jury what it would take to do exactly what an expert in crash reconstruction. Trooper Zukowski testified that Kanoff did in the moments leading up to the crash — alternating Kanoff’s minivan was traveling between 25 and 29 miles per hour between composing text messages, receiving text messages, and when it hit Elefson’s car. Before hitting Elefson’s car, the minivan placing calls. This allowed the jury to see the phone up close and hit Elefson, throwing him onto the windshield and dragging him visualize what Kanoff was physically doing in the moments leading underneath it for 88 feet. When interviewed immediately after up to the crash. the crash, Kanoff maintained that she slammed on the brakes with The defense contended that the State had not proved beyond both feet when she saw Elefson. However, Trooper Zukowski a reasonable doubt that Kanoff was texting or manipulating her testified that he found no evidence of pre-impact braking or any phone at the time of the crash. According to the defense, the crash evasive maneuver on Kanoff’s part. He stated that the claim of was unavoidable. The defense contended that the crash happened braking was not consistent with the fact that the minivan traveled not because Kanoff was texting, but because Elefson was in the

2 U.S. Department of Transportation. The 100-Car Naturalistic Driving Study. By Dingus, Klauer, et al. Three Part Series. Virginia: National Technical Information Service, April 2006. (National Highway Traffic Safety Administration Bulletin DOT HS 810 593). http://www.distraction.gov/research/pdf-files/the-100-car-naturalistic-driv- ing-study.pdf (accessed 10/3/2013). middle of the road, and the driver of the car in front of Kanoff left no time to react to Elefson. The defense presented no physical her no time to avoid striking Elefson. In short, the defense argued evidence or witness accounts to support this claim. Nonetheless, that the crash was the fault of everyone except Kanoff. the engineer prepared a report and diagram outlining a scenario To bolster her theory, Kanoff called two expert witnesses, a consistent with Kanoff’s claim. The diagram showed a car travel- professor and an engineer. The first witness, a professor from the ing in front of Kanoff and depicted the car making a sudden lane University of Wisconsin-Madison, was an expert in radio wave change, leaving no time for Kanoff to avoid Elefson. On cross, we technology. The purpose of his testimony was to suggest that the got the engineer to concede that the theory was based entirely on State’s timeline of Kanoff’s phone activity was unreliable. The statements of the defendant. He further conceded that he made a professor testified that there were many variables that could affect number of assumptions in creating the scenario, the most import- cell phone technology, including atmospheric conditions, the pres- ant one being that the car had even existed in the first place. By ence of sky scrapers, and problems with the phone itself. While pointing out that the engineer’s entire reconstruction of the crash the professor had an impressive resume and was clearly intelligent, was based on the statements of the defendant and not any physical we were able to limit the impact of his testimony. On cross, we got evidence, we were able to limit the effect of his testimony. the professor to concede that his only experience working with In closing, we recalled what the jurors had told us during voir actual cell phones was in the 1980s and that the technology had dire. Many of the jurors admitted to texting while driving but substantially changed since then. We also minimized the profes- said they only did it while stopped at stoplights or on quiet streets sor’s testimony by pointing out that the only documentation of with little traffic. Remembering that, and keeping in mind the reported problems with Kanoff’s model of phone came from his “there but for the grace of God go I” phenomenon, we tried to review of online chat room conversations. He acknowledged that find a way to differentiate between the jurors’ habits and Kanoff’s he had no idea who the people were who reported the problems, conduct leading up to the crash. We argued that Kanoff did not and that he had no way to ensure the veracity of the claims made just send one text while stopped at a red light and she was not on online. Furthermore, he agreed that there were no skyscrapers in a quiet street. Rather, Kanoff was continually manipulating her Madison or any atmospheric conditions the day of the crash that phone while driving her 4,000 pound minivan down a busy street could have affected Kanoff’s ability to send text messages. in central Madison. She placed two calls to her mom, two calls The defense also called an engineer as an expert in crash to her boyfriend, composed a 108-character text message to her reconstruction. The purpose of his testimony was two-fold. First, manager, read an incoming text from her manager, and then com- he contended that Kanoff did break prior to impact, contrary to posed a text to her boyfriend in the three and one-half minutes Trooper Zukowski’s opinion and second, he would demonstrate leading up to the crash. We also asked the jurors to remember the how Kanoff had to swerve to avoid another vehicle. The engi- demonstration of the Sprint technician who showed how Kanoff neer testified that his examination and analysis of the bumpers of had to manipulate her phone by taking her hands off the wheel both vehicles revealed evidence of weight shifting, which was the and her eyes off the road. We emphasized that Kanoff was fixated result of braking on Kanoff’s part. While his conclusion seemed on her phone instead of watching the road and traffic around her, plausible, on cross examination the engineer admitted that he had and that was criminally negligent conduct. Had Kanoff been alert done his analysis after the crash, with damaged vehicles (a topic and paying attention, she would have seen Elefson in his neon of inquiry suggested to us by Trooper Zukowski). Elefson’s rear clothing, or his car with the hazard lights on, and she would have bumper area had significant damage from the impact and had moved over, like every other driver. Had that phone not been in shifted downward post crash. The engineer conceded that in order Kanoff’s hand, Elefson would still be alive. Finally, we asked the for his analysis of bumper heights to be accurate, he should have jury to hold Kanoff accountable for taking Elefson’s life. used a vehicle that did not have rear end damage. Confronted After deliberating just two hours, the jury found Kanoff guilty with information, the engineer admitted that his analysis was not of homicide by negligent operation of a motor vehicle. Kanoff was necessarily accurate, and that his claim of pre-impact braking was subsequently sentenced to a three-year prison sentence, with one questionable. year of initial confinement and two years of extended supervision. The engineer also testified about Kanoff’s claimed that a silver She was also ordered to perform community service by speaking car made a sudden lane change right in front of her, leaving her to youths about the dangers of texting while driving.

Contact Us Joanne E. Thomka Kristen K. Shea National Traffic Law Center Program Director Senior Attorney National Distsrict 703.519.1645 703.519.1644 [email protected] [email protected] Attorneys Associatsion 99 Canal Center Plaza Duane M. Kokesch Brittney D. Wilson Suite 330 Senior Attorney Program Assistant, Paralegal Alexandria, VA 22314 703.519.1641 703.519.1695 703.549.9222 [email protected] [email protected]

The National Traffic Law Center is a program of the National District Attorneys Association. This document was prepared under Cooperative Agreement Number DTNH22-13-H-00434 from the U. S. Department of Transportation National Highway Traffic Safety Administration and Grant Number CD119910NDAAOP from the U.S. Department of Transportation Federal Motor Carrier Safety Administration. Points of view or opinions in this document are those of the authors and do not necessarily represent the official positions or policies of the Department of Transportation or the National District Attorneys Association.