Texting/driving widow: Just ‘a traffic ticket?’

LAFAYETTE, Ind. — The small packet of documents Linda Foster carried with her up three flights of stairs at the Tippecanoe County Courthouse contained all she felt she needed to know about how her husband, Paul, a driving instructor with Indiana All-Star Driving School who was killed on Jan. 16.

On one sheet, she had a picture of a red 2007 Ford Focus, trunk folded in and sprawled the wrong way in a ditch along U.S. 52, where County Road 975 East cuts south to Clarks Hill, about 6 miles south of Lafayette. Paul Foster, 69, had been riding shotgun with William Reddoch, then a 16-year-old West Lafayette High School sophomore and his last student driver for that Saturday afternoon. A black 2005 Chevy pickup that rear-ended the student driver car is in the frame of the shot, aimed sideways in the U.S. 52 median.

Another six pages she carried set the scene, in the words of Daniel McGrew, then a Tippecanoe County sheriff’s lieutenant who investigated the crash. According to the report, police couldn’t find signs of “brake marks or evasive maneuvers” — a witness told police she saw the truck “swerve to the right, the brake lights activate and an explosion of red car parts simultaneously.”

So they confronted Nick Salem, the 24-year-old Michigantown man behind the wheel of the pickup truck: Had he been texting and driving? Salem denied it but showed deputies his cellphone.

“It appeared an ongoing conversation was being had … before impact,” McGrew wrote in the report. “(Salem’s) last message was sent out at 3:26 (p.m.). The crash was first reported at 3:27 (p.m.).”

Police listed “cellphone usage” as a contributing circumstance in the crash.

“It seemed so clear,” Linda Foster said. “I had the police report right there in my hands. How Paul died. Why Paul died.”

So that day at the courthouse, nearly a month after her husband died in a Lafayette hospital of internal bleeding caused by the crash, Linda Foster said she couldn’t understand the words coming from Tippecanoe County Prosecutor Pat Harrington’s mouth. The prosecutor — apparently hamstrung by an Indiana texting and driving law that has been ripped by the courts as ineffective — didn’t plan to file criminal charges.

Instead, Salem would get a traffic ticket. Salem — who declined to comment for this story other than to say he still maintains that he was not texting — faces a bench trial Monday afternoon in Tippecanoe Superior Court 6. The maximum fine for the infraction: $500.

“I mean, I heard what (the prosecutor) was saying, I just didn’t get it,” Foster said. “I tried to stay calm … but when we got out in the hallway, I just broke down. … There’s not a law? This is what Paul’s life was worth? A traffic ticket?

“I couldn’t understand. So I just cried.”

The crash and the charges

There is a law, actually.

Whether it gets the job done is another matter.

Harrington said he can’t get into specifics about the crash that killed Paul Foster. He doesn’t talk about cases facing pending litigation.

“I can answer your question in a more global view,” Harrington said. “If the facts of any traffic fatality gives us the evidence to file a criminal case, we will file a criminal case.”

But Harrington said he was fully aware why this case will push buttons with so many people.

After working a career at the Fairfield Manufacturing plant in Lafayette, Foster started working for Indiana All-Star Driving School 13 years ago.

Kyle Meek, owner of the driving school and Foster’s boss, said he rotates his driving instructors in such a way that 80 percent of the student drivers who came through Indiana All-Star Driving School on South 22nd Street over the past 13 years would have had Foster in the passenger seat at some point. Given that Indiana All-Star is about the only driving school game in town, Meek figured, the better part of a generation of Greater Lafayette drivers had at least one session with Foster and the trademark mascot game — you name a high school or university, he’d say the mascot — he played with students to keep them loose.

Harrington also said he was fully aware of the questions the crash raised about Indiana’s texting and driving laws, once the police report went public in the days after Foster’s death.

In 2011, Indiana made it a Class C infraction, a misdemeanor offense on par with speeding, for a driver in a moving vehicle to “type” or “transmit a text message or an electronic mail message or read a text message or an electronic mail message” … “unless the device is used in conjunction with hands-free or voice-operated technology” or is being used to call 911 in an emergency.

The law, riddled with holes, has been mocked over the past five years. The U.S. 7th Circuit Court of Appeals hammered that home in a February 2016 ruling.

In U.S. v. Gregorio Paniagua-Garcia, the court ruled police wouldn’t have found 5 pounds of heroin tucked in a spare tire in the trunk without the assumption that the driver staring at his phone along Interstate 70 was texting. (Paniagua-Garcia argued that he’d been messing with a music playlist on his phone.)

Circuit Judge Richard Posner racked up a dozen or so reasons police might catch a driver staring at a cellphone while driving before concluding: “Indiana is right to be worried about the dangers created by persons who fiddle with their cellphones while driving, but probably wrong to outlaw such fiddling only with respect to texting — if only because the effect of slicing up drivers’ use of cellphones in this way has been to make the Indiana statute largely inefficacious.”

‘A very, very high mountain to climb’

Harrington won’t talk about what police and the prosecutor’s office did to nail down if, when and how Salem was using his phone when his truck hit the All-Star Driving School’s Ford Fusion on a state highway with a 60 mph speed limit.

“In the area of texting and driving, ultimately, absent a confession, where they tell the police office, ‘I was looking at my cellphone and texting, and then I hit the car’ … we don’t have technology that can pinpoint any given point in time and second on a GPS map where you were,” Harrington said.

“At what point in time, if your cellphone records show you were using your cellphone at 2:15 in the day, well, does that put you at mile marker 162 or mile marker 162.1 or 162.2 or 163? Going back to a case without a confession, under the current statute, it’s a very, very high mountain to climb to get the proof necessary to file a case.”

Jeff Cooke, a Lafayette attorney, is handling the civil side of the case for Linda Foster. In his dealings with insurance companies, Cooke said he didn’t necessarily need to prove the texting and driving aspect. But, he said he was surprised the prosecutor’s office either didn’t pursue it or couldn’t prove it.

“What upsets Mrs. Foster is she has a dead husband and the prosecutor has chosen to make it a traffic ticket,” Cooke said. “What kind of message does that send to the community? That’s a rhetorical question I’m not going to answer for Pat. He can answer it. He’s a big boy. But when we have the facts that we think we know of in this case, it is concerning to the surviving spouse and other people in the family that the kid’s going to be charged with an infraction, not an involuntary manslaughter or something like that.”

Harrington argues that the 2011 texting law is just half the equation. Even with locked-down proof that texting and driving caused a crash, would it amount to something more than a ticket? He points to this in case law.

In 2002, the Indiana Court of Appeals overturned a reckless homicide conviction of a truck driver who was speeding and ran into the rear of a slowing vehicle, sending the driver into the path of an oncoming dump truck. In Whitaker v. Indiana, the court wrote about “our state’s chosen policy regarding the criminalization of fatal traffic collisions.”

“The General Assembly has deemed that neither ‘negligent homicide’ nor ‘vehicular homicide’ is a crime in Indiana, as they are in some states,” the court ruled in Whitaker v. Indiana. “Clearly, since at least 1977 it has been public policy in the state of Indiana that automobile accident deaths caused by negligence, even gross negligence, fall outside the realm of criminal prosecution, and that the mere violation of a traffic law as a cause of a collision will not automatically raise the death to the level of a homicide.”

“If you talk to legislators, maybe it’s a matter of, ‘Where do you start, and where do you stop,’ on the scale of distraction,” Harrington said. “It really is just a question of volume — everyone has a cellphone now. … Legislators know these (court) decisions are out there. And they always have the ability to amend laws or make laws to make that a crime if they want to. … Due to the lack of legislation, this seems to be the accepted standard.”

Texting ‘accepted by our society’

Meek, the All-Star Driving School owner, said he was in the room with Linda Foster as Harrington explained why the prosecutor’s office wasn’t going for more than a ticket in this case.

Frustrated, Meek couldn’t help but think of accepted standards, too. It’s a part of every classroom session at his schools — and not just because a picture of the January crash is tacked on the wall as a constant reminder. Consider the simple math: Looking down at a cellphone screen for just six seconds at 30 mph is the same as ignoring the road for the length of a football field.

“Everyone knows they shouldn’t text and drive. And everyone says you shouldn’t text and drive — until you feel you need to make a text. Then, for that moment, you feel, ‘Well, I’ll just do this real quick,’” Meek said.

“People seem to be OK with texting and driving. I mean, if you see someone drunk going to drive, you tell them to stop. If you see somebody texting and driving, nobody says anything. For some reason, this activity seems to be generally accepted by our society. Which is why it’s not criminalized.”

He said he offered to help Linda Foster lobby for tougher laws. The offer came with a caveat, based on his experience lobbying the General Assembly as part of the Indiana Driving Schools Association.

“If she’s up for it and understands it might be a lot of work and emotion with no real outcome,” Meek said. “Problem is, it’s an uphill climb.”

Lawmaker: No feel-good solutions

In 2016, Sen. Pete Miller, R-Avon, carried a bill that would have banned all uses of a cellphone while driving except for phone calls, software to find gas stations or using maps for directions. Sen. Carlin Yoder, R-Middlebury, chairman of the Senate Homeland Security and Transportation Committee, never called Senate Bill 79 for a hearing. (Yoder, who is not seeking re-election, did not respond to requests for interviews for this story.)

A year earlier, the House and Senate let three bills that called for some form of hands-free-only cellphone regulations languish.

“The issue is the stomach of the legislature in a very conservative state,” said Rep. Ed Soliday, a Valparaiso Republican and chairman of the House Roads and Transportation Committee.

Indiana is one of 34 states with laws specifically aimed at texting and driving, according to the Governors Highway Safety Association. Another 14 states — including Illinois — have hands-free laws. Two, Arizona and Montana, have no statewide restrictions.

Soliday admits that the 2011 law, written to be limited in scope, has been less than effective.

Police found out long before the 7th Circuit Court of Appeals weighed in that proving that someone was texting, rather than making a call or checking a map, was barely worth the battle. According to the law, officers must get a search warrant if they want to check phone records to prove the case, for one.

Since July 1, 2011, when the texting and driving ban went into effect, there have been 84 citations — or roughly 17 a year — issued in Tippecanoe County, according to county court records. According to statewide records kept by the Indiana Bureau of Motor Vehicles, police issued 307 citations in fiscal year 2014 and 340 citations issued in fiscal year 2015. Those equal fewer than four per county across the state.

“I think it’s fair to say we all know — we all see — that texting (and driving) happens more than that,” said West Lafayette police Chief Jason Dombkowski. “The bottom line is it’s a well-intended law that’s difficult to enforce. If you’re talking about texting, that’s, what, one of 200 things you can do on a cellphone these days?”

State Sen. Brandt Hershman, R-Buck Creek, voted against the 2011 law because it had so many holes. He said he’d be in favor of a hands-free law. But Hershman and Soliday each said the lack of hard data about texting and driving make laws a hard sell in the General Assembly.

Research about texting and driving is spotty, relying on surveys, often from insurance companies. In October 2015, a State Farm survey of drivers age 16 to 19 reported that more than 90 percent said they understood that texting while driving was distracting, but 44 percent said they did it anyway. When asked to pick from a list of reasons that would keep them from reading or sending texts, the chance of crashing was No. 1 with 51 percent, followed by getting caught by police at 50 percent.

In a 2013 report, the National Safety Council warned that as long as the best means of measuring texting and driving rates depended on a driver’s admission, the actual metrics would be artificially low.

“I can tell you that I strongly believe (a hands-free law) would help, but I can’t prove it,” Hershman said. “But at the end of the day, it’s hard to legislate what should be common sense.”

Soliday said he’s willing to call up a texting and driving bill introduced in 2017 in the Indiana House, on a couple of conditions. The first: It would have a chance to get through a vote in the full House. The second:

“I am open to looking at something that actually does some good,” Soliday said. “I’m not really open to something that just makes me feel good and makes me look good in your newspaper.”

Recovery after the crash

William Reddoch, then a 16-year-old sophomore at West Lafayette High School, was on drive No. 5 of six required during his course work at Indiana All-Star Driving School. That meant highway driving. He’d driven a few times before with Paul Foster, so he felt ready for 50 minutes dominated by time on U.S. 52.

Reddoch said he remembers turning on his blinker and slowing down after Foster told him to prepare to make a U-turn on County Road 975 East to head back to Lafayette. He said he doesn’t remember the crash or anything else until a few days later.

The police report says a witness who had been following Salem in the left lane of southbound U.S. 52 put the pickup’s speed at 62 mph or 63 mph before the collision. Salem and his 14-month-old son riding with him had minor injuries. Salem declined an opportunity to give his account for this story. His attorney, Rick Martin of Frankfort, said only that Salem denied he was texting and that he’d save his account for traffic court on Monday.

Reddoch suffered a concussion that left him with migraines and out of school for a week and a half. But he was able to leave the hospital that night. He apparently was with it enough in the emergency room to ask nurses if he still had time to get to school to play in that night’s West Side basketball game. (“It wasn’t just any basketball game, either, because it was everyone’s favorite game at West Side, against Harrison,” Reddoch said.)

By then, Reddoch and his parents were making decisions about whether he should go to Paul Foster’s funeral visitation. He did and met Foster’s daughter, Amy Coon. (“She was asking me if I was OK and how I was doing,” Reddoch said. “For everything that was going on, she was trying to make me feel comfortable.”) There, Reddoch found out that Paul Foster kept asking from a hospital bed whether the student was OK after the crash.

A few weeks later, Coon would meet the prosecutor, too. She said she heard the same things Linda Foster heard.

“(Harrington) spent about 90 minutes with us, explaining and re-explaining,” Coon said. “I never argued it. I was just like, ‘Really? There’s no this? There’s no that?’ It was just getting it into your head that there is no law that helps with anything. … Even if they did prove it, it’s just an accident here. It’s like an accident if a bee flew in your car and you hit something. That’s it.

“You could explain that to me all day. But I apologize, I still won’t get it.”

‘Burden that we'll always carry’

On the first day of school on Aug. 11, Reddoch’s mom, Julie Paolillo, posted photos on Facebook marking the start of his junior year and his first time driving himself to school. (“I’m a decent driver,” Reddoch said. “I’m doing OK, really.”) He says he’s been more aggressive with friends about putting down the phone in the car.

“I feel like the longer the time gets between the accident and now, the more people will forget what happened and they start getting back into bad habits,” Reddoch said.

Meek said the crash has been incorporated into his school’s curriculum.

“Every one of my teachers talks about this with a very firsthand ability,” Meek said. “I’d like to think it’s been impactful, and in that way Paul’s still teaching people.”

Linda Foster keeps a box of condolence cards and letters topped with the crash report she took to the prosecutor’s office shortly after her husband’s death. She said she’s still not sure what to do with her husband’s things, so mostly she leaves them where they were when he left for work on Jan. 16. She did sell the Kia Soul that Paul Foster drove, but only after peeling back the handwritten thoughts and notes based on biblical Scripture he taped to the sun visor. She’s pressed them into the inside cover of a Living Bible translation her husband used. Among the dozen or notes she found in the car: “If we live for Christ, we will be prepared for death.”

On Monday afternoon, Salem will get his chance to dispute claims that he was texting and explain how the crash happened.

Coon said she has that court date on her calendar. More importantly, Coon said, she still has a date circled on her February calendar when her dad was scheduled to come over for one of their pizza and movie nights. (“He’d ask the driving school kids, ‘Where’s a good place to eat? What’s new? Where do your parents like? What’s a good movie you’ve seen?’” Coon said. “He was always looking for what’s new. He pursued fun.”)

That February date was about the time the prosecutor explained to her there was no law that made it easy to sort out what happened at the intersection of U.S. 52 and County Road 975 East on Jan. 16.

“I had the feeling then — and I have the feeling now — of: How long will it be true that I lost my dad in this way?” Coon said. “How long? Forever. It’s a burden that we’ll always carry, because the way it happened was absolutely needless.”

Bangert is a columnist with the Journal & Courier. Contact him atdbangert@jconline.com.

Cellphone use linked to deadly crash

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