EagleTribune.com, North Andover, MA

New Hampshire

February 9, 2013

Court says driver cell phone can be criminal

CONCORD, N.H. (AP) — Even though talking on a cellphone while driving is not illegal in New Hampshire, the Supreme Court says doing it can be used to convict a driver of criminally negligent homicide.

In its unanimous ruling Friday, the court upheld the conviction of Lynne Dion, of Franklin, in the 2009 death of pedestrian Genny Bassett.

Phone records showed Dion used her cellphone to call a friend 90 seconds before using that same phone to call police after the accident.

Dion’s lawyer, Allison Ambrose, argued in her brief that because cellphone use while driving is legal, it is not enough to convict someone of criminally negligent homicide.

“For that conduct to be blameworthy there’s going to have to be some change in the law,” Ambrose said. “That’s not for the jury or the court to decide.”

The five justices of the state’s highest court disagreed.

“Conduct that is, itself, not prohibited — including the use of a cellphone while driving — may constitute the requisite blameworthy conduct when such use results in inattention and distraction,” Justice Carol Ann Conboy wrote.

The case marks the first time the court addressed cellphone use in the context of a criminally negligent homicide conviction.

To find Dion guilty of criminally negligent homicide, the state had to prove beyond a reasonable doubt that her conduct amounted to a “gross deviation from the conduct that a reasonable person would observe in the situation.”

Dion, 48, was sentenced in 2011 to 18 months to three years in prison and her license was revoked for seven years from the date she is released from prison. She has remained free on appeal.

Bassett left her home to walk home her close friend, 60-year-old Elsa Gonnella, after an evening of playing cards and watching movies. The two women were crossing a bridge in Franklin and had almost reached the sidewalk when they were struck by Dion’s car at about 9 p.m. on June 28, 2009.

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