Cal Fire Chief Charged with Vehicular Manslaughter Over Texting Related Crash

A chief with the California Department of Forestry and Fire Protection (CAL FIRE) has been charged with vehicular manslaughter for an accident that occurred last August.

Unit Chief Timothy John McClelland, 48, was charged yesterday in connection with the August 1, 2012 accident that caused the death of Gregory Francis Kirwin, 48. Chief McClelland was driving a Cal Fire pickup truck that collided with the rear of Kirwin’s vehicle, causing it to crash into the rear of a third vehicle. Kirwin died at the scene.

Prosecutors allege that Chief McClelland was texting at the time of the accident.

California law handles manslaughter in a rather unconventional way, dividing it into three categories in the same statute: voluntary, involuntary, and vehicular. Here is the statute:

California Penal Code 192.  Manslaughter is the unlawful killing of a human being without malice. It is of three kinds:

   (a) Voluntary…

   (b) Involuntary…

   (c) Vehicular– (1) …driving a vehicle in the commission of an unlawful act, not amounting to felony, and with gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence.

   (2) Driving a vehicle in the commission of an unlawful act, not amounting to felony, but without gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, but without gross negligence. …

California Penal Code Section 193 allows a vehicular manslaughter defendant to be charged with either a felony (Section 192 (c) (1) with gross negligence) or a misdemeanor  (Section 192 (c) (2) without gross negligence).

In Chief McClelland’s case, the news reports are somewhat conflicting in that they claim he was charged with vehicular manslaughter with gross negligence, but was only charged with a misdemeanor. He is scheduled to be arraigned on April 10, 2013 in Superior Court in San Bernardino.

Among his likely defenses will be that his texting was lawful under California’s texting while driving law because he was operating an authorized emergency vehicle.

California Vehicle Code Section 23123 and 23123.5 state:

23123.  (a) A person shall not drive a motor vehicle while using a wireless telephone unless that telephone is specifically designed and configured to allow hands-free listening and talking, and is used in that manner while driving. …

(d) This section does not apply to an emergency services professional using a wireless telephone while operating an authorized emergency vehicle, as defined in Section 165, in the course and scope of his or her duties.

and

23123.5.  (a) A person shall not drive a motor vehicle while using an electronic wireless communications device to write, send, or read a text-based communication, unless the electronic wireless communications device is specifically designed and configured to allow voiceoperated and hands-free operation to dictate, send, or listen to a text-based communication, and it is used in that manner while driving.

(b) As used in this section “write, send, or read a text-based communication” means using an electronic wireless communications device to manually communicate with any person using a text-based communication, including, but not limited to, communications referred to as a text message, instant message, or electronic mail….

(e) This section does not apply to an emergency services professional using an electronic wireless communications device while operating an authorized emergency vehicle, as defined in Section 165, in the course and scope of his or her duties.

If the state cannot establish that Chief McClelland’s texting was unlawful, the manslaughter charge under CPC 192 (c) (2) would (in the absence of another unlawful act) most likely fail. Among the probable issues that will be in contention: was the pickup an authorized emergency vehicle (likely yes); was the text personal or job related; if the text was personal does the provision “in the course and scope of his or her duties” pertain to the nature of the text… or whether he was engaged in a work related activity while driving the vehicle. One could make the argument that to be guilty of texting while driving an authorized emergency vehicle both the subject of the text message AND his purpose for driving the vehicle would have to be personal. Of course the prosecution will likely argue the opposite… that in order to have a defense under 23123.5(e) both text message and the purpose of driving the vehicle have to be job related.

Lots to ponder….

More on the story.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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