Mens Rea means “guilty mind” and is, along with proof of a criminal act itself, one of the two required elements of a crime in due process countries around the world. Said simply, a prosecutor must prove certain acts were committed by a defendant. But along with those acts, the prosecutor must also prove the presence of a guilty mind – acting knowingly and intentionally – of the defendant as well.

An interesting question to ponder… what “new” things in our dynamic social fabric do we now know that will constitute acting “knowingly and intentionally” and if we do them, will we provide the necessary criminal intent to be charged with a crime?

Answer: Texting while driving.

We know texting while driving is dangerous, and because we collectively “know” it, the mens rea requirement of a criminal act can be satisfied.

A recently released Centers for Disease Control and Prevention (CDC) study found that 58% of high-school seniors admitted to texting or emailing while driving in the past month.

While some teens that were interviewed dismissively compared texting to eating food while driving, most understood it was a dangerous activity. You can eat a hamburger without looking at it. Few of us can text without looking at the keyboard, and that means you are not looking at the road – one of the prerequisites to safe driving.

While most states have passed specific legislation criminalizing the texting activity, it really is not necessary. Texting while driving is sufficiently established as knowingly and intentionally dangerous to constitute the “guilty mind” requirement for a Negligent Homicide Felony charge if a fatal accident occurs while texting. For any teen, the conviction of any felony can change a life forever.

The number of tragic stories are mounting. Convictions of teen drivers charged with Negligent Homicide and sentenced to prison can be found in nearly every state. Public safety educational campaigns are underway but having little effect on a teen’s overriding need to stay connected.

Texting is23 times more distracting than talking on a phone. In spite of this, most people do it anyway. Here are three apps that will limit the ability to text while driving.

Name: Textecution
For $29.99 one-time charge, this program is marketed to parents of teenagers, who need as few distractions as possible while driving. Using the phone’s GPS, Textecution disables texting if it detects that the phone is moving faster than 10 mph. To override, for example, if you’re a passenger or on a train, you can ask your phone’s “administrator,” usually a parent texts “allow” to disable.

Name: DriveSafe.ly
  For $9.95 a month for a family, DriveSafe.ly reads text messages and emails aloud on the phone’s speaker. It also allows you to select several auto-reply messages to respond hands-free, although it’s unclear if this is only available as a pro feature.

Name:TXTBlocker
For $9.95 a month, TXTBlocker allows you to set time and location restrictions for texting or talking on the phone. One suggested use of this is to prevent kids from texting at school. There is a safe list of numbers, like 911, that can always be dialed. You can also block texting or using the phone while the phone is traveling at certain speeds.

Text messaging while driving is currently banned in 39 states with another 5 states banning it for younger drivers. While it is hard to know exactly how many crashes are due to texting, it is estimated that “distracted driving” was the cause of 18% of all accidents in 2010. These accidents (in 2010) were responsible for the death of 3092 people with an additional 416,000 estimated injuries. Jay A. Perry, Attorney, Chattanooga, TN, June 11, 2012, davis-hoss blogspot.com   

Texting is now also banned for pedestrians in one New Jersey town, so one could expect other cities and towns to follow as injuries or death rise.  According to the ABC news story, “Two professors at Stony Brook University in New York conducted a study on walking and texting. They found texters are 60 percent more likely to veer off line than non-texters.”   

Gillian Cooley Morrison, Esq. has been practicing law since 1993 and as a contract attorney since 1997. Her practice includes Domestic/Family Law, Civil and Commercial Litigation. She is a graduate from CU Boulder (1990) and the University of Denver, College of Law (1993). In addition to practicing law, Ms. Morrison is an adjunct professor with Arapahoe Community College and has taught Contract Law, Family Law and Civil Procedure. In her spare time, Ms. Morrison enjoys reading, traveling and racing Porsches. She can be reached here.