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The Defenders: Police face major challenges in distracted driving cases

You may be surprised to learn there is not a civil law in North Carolina that punishes people for distracted driving.

CHARLOTTE, N.C. — An NBC Charlotte Defenders investigation revealed major challenges in the fight against distracted driving.

Distraction topped the list of growing dangers on the road. According to a study from AAA, 49 percent of drivers said they recently talked on the phone while driving, and nearly 35 percent have sent a text or email.

Despite those numbers, nearly 58 percent of drivers said talking on a cell phone while driving was a very serious threat to their safety, while 78 percent believed texting was a significant danger.

The Defenders learned more about legal obstacles that make it harder for police to prove that someone was texting and driving.

There was a case involving a city of Charlotte garbage truck driver accused of distracted driving. However, some important information about the incident did not come out until much later.

“I feel really bad about it,” said Lavance Ginyard, a former city of Charlotte garbage truck driver.

The police report described how Ginyard slammed into another vehicle which led to a chain reaction crash on North Tryon in 2014. He was driving a city garbage truck at the time.

“I want to apologize for, I don't want to say negligent driving, but I could have been more alert,” Ginyard told NBC Charlotte.

Four years later, a lawsuit claimed one of the victims was seriously hurt and alleged Ginyard was negligent. But the plaintiff’s attorney took it a step further.

“The individual was distracted through use of phone at the time,” said Ryan Valente, attorney for Michael A. Demayo law firm.

Valente said distracted driving wasn’t determined during the police investigation -- only after the civil lawsuit was filed during the discovery process.

“I think the officers' hands are tied at the scene of an accident; they are not allowed to go inside someone's phone without a warrant,” Valente told NBC Charlotte.

Speaking generally, the Charlotte Mecklenburg Police Department acknowledged there are challenges in proving distracted driving. The Defenders asked Lt. Brad Koch if it’s next to impossible to prove without a witness or admission.

“It's difficult, not impossible,” Lt. Koch responded. “I would actually need you to give me your phone; I can't take the phone out of your hands and check to see if you've been texting.”

Ginyard did not directly answer the question about distracted driving during NBC Charlotte's interview.

“With it being three or four years ago, it's all behind me. What has happened has happened,” Ginyard said.

The Defenders investigation also raised new questions about distracted driving in civil cases. Valente said unlike drunk driving, there is not a civil law in North Carolina that punishes people for distracted driving.

“Texting causes almost as many fatalities as drunk driving; it would be the legislature who have to pass a law to say in a civil case you can be punished for your actions,” Valente told NBC Charlotte.

According to North Carolina’s punitive damages statute, there is a limit to how much victims can be rewarded. Drunk driving cases are exempt from that limit, but distracted driving cases are not.

Bottom line, Valente said distracted driving is treated no differently than being at fault for more innocent reasons.

“Even though we know texting is a much more serious act than changing the channel on your radio,” said Valente.

Ginyard told NBC Charlotte the crash in 2014 has changed him.

“I drive a lot more different,” he said.

Ginyard said he no longer works for the city. City officials said they did not want to comment on a pending lawsuit.

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