Utah's texting-while-driving law has been called one of the toughest in the nation.
The class C misdemeanor charge can be heightened to a class B misdemeanor or even a third-degree felony if the offender causes bodily harm or death while texting and driving.
But prosecutors say the narrow construction of the 2009 law has made it almost impossible to get convictions.
As the law was written, a driver had to be sending a text at the instant an accident occurred, while merely looking at a text or the screen of a cellphone was not deemed to be illegal.
But an amended version of the law, which took effect May 8, makes it illegal to be doing anything on a hand-held wireless communication device except making or receiving a call, or using GPS navigation.
That means a driver may not use a cellphone to send data, read a text, use an app or view an image. And that should make it easier for prosecutors to prove cases in which such devices are suspected to have distracted a driver.
People are being charged with class C misdemeanors under the texting-while-driving statute, but according to a search of district court records available at Utah's Right to Know (www.utahsright.com), The Salt Lake Tribune's data website, no one has been successfully prosecuted under the heightened class B misdemeanor or felony charges.
"Factually, [it] can be difficult to prove that they're texting at that time," said Deputy Salt Lake County District Attorney Jeff Hall. "We can try and get phone records ... and we are very aggressive about subpoenaing phone records. Sometimes those are helpful, sometimes they are not conclusive."
Hall said it helps if a passenger or eyewitness can testify about a driver's suspected texting, but he said that is "rare." Occasionally, drivers will admit they were texting.
"You don't get that very often," he said. "Usually it's a circumstantial case. ... They have been difficult to prove. It's not saying we don't try, but sometimes you've got to play the hand you're dealt."
Many of the cases that have made their way through the legal system have offense dates before the latest change in the law, so drivers can be prosecuted only by the limits of the statute at that time.
This has been problematic for the Utah County Attorney's Office, which recently filed charges in a texting-while-driving case involving a death.
Though charges were filed this month against Cade Krueger, 29, who is accused of texting moments before he struck two women killing one in a crosswalk on the Brigham Young University campus, the incident happened in 2010, when the law applied only to drivers sending a text at the moment an accident occurred.
"Our evidence showed that he was sending a text just prior to the accident," Chief Deputy Attorney Tim Taylor said, explaining why the case was filed only recently. "But we didn't quite know whether we could prove he was sending the text when he hit [the two women]. That was part of our hesitation to prove the case beyond a reasonable doubt."
However, Taylor said, investigators looked at the case again and now believe that through surveillance video and circumstantial evidence they can prove Krueger was breaking the law at the time of the accident.
Krueger made his initial appearance in 4th District Court on Sept. 17. His next court appearance is scheduled for Nov. 7.
Taylor said the change in the law will hopefully help make texting-while-driving cases less difficult to prove.
Deputy Davis County Attorney Brandon Poll said his office had a similar case last year, when Layton resident Craig Moyes, 20, was charged under the texting-and-driving law with third-degree felony automobile homicide after he struck and killed a man who was crossing the road. Moyes was reading a text message at the time of the accident.
Moyes eventually pleaded guilty to a reduced count of negligent homicide.Poll believes there should be more emphasis on educating people about the dangers of texting and driving, much in the same way seat belt awareness has grown in recent years.
"The biggest thing is educating people," he said. "Especially our next generation that is coming up that has grown up with texting. I didn't grow up with texting ... but kids who are 30 years old and under, that was a major part of their life."
Tribune reporter Donald Meyers contributed to this story.