Photo by Ryan Harvey.

When they discovered that the driver who killed 85-year-old Charles Schwartz in October 2008 was using a cell phone, MPD aggressively pursued charges, but the law and a grand jury stymied prosecution.

At 12:15 pm on October 1, 2008, Mr. Schwartz was crossing Connecticut Avenue near Nebraska Avenue to get from a bank to a store to buy a sandwich. He was crossing outside the crosswalk. A driver hit him and he became impaled in the windshield.

According to Mr. Schwartz’s daughter Sally Schwartz, MPD later determined that the driver did not apply the brakes or swerve. Most importantly, the driver was on his phone at the time of the crash. MPD could pinpoint the time very closely because Mr. Schwartz’s ATM transaction carried a timestamp, and after subpoenaing the phone records, they determined that the driver was using the phone right around the time.

However, they couldn’t determine whether he was actually talking on the phone at the very moment of the crash. He married the person he was speaking to, so the police could not compel testimony about whether she heard the crash. Since the driver did not tell police he was using his phone at the time, they couldn’t prove it. In fact, according to Ms. Schwartz, the driver didn’t cooperate at all, even changing his phone number.

Ms. Schwartz said she was very pleased MPD pursued the case, even though Mr. Schwartz was not crossing legally and the driver was not cooperating.

Unfortunately, the law in DC makes it difficult to penalize a driver who is using the phone while driving and kills someone, unless the police can prove he was talking at the very moment of the crash. The attitude of grand juries is also potentially a problem. Since many people drive and many in fact drive while using cell phones, they may empathize with the driver and refuse to indict someone even if they kill another human being. We can’t know what was in the mind of this grand jury, but that’s a likely reason.