PHOENIX — It is not illegal in most Arizona cities to text and drive.
But if you do it — and you're in an accident — what you're thumbs were doing at the time can be used in at a trial against you, the state Court of Appeals ruled Tuesday.
In a unanimous ruling, the judges said jurors were entitled to know that Roberto Salamanca had sent an angry text to his girlfriend within a minute of a 2011 crash in Flagstaff that left another person dead. They said the timing of that text was so close to the crash that the act was "intrinsic” to the charges he faced, including second degree murder.
“The jury could have concluded .... that the act of sending the text, or the act of handling his cell phone directly after having sent the text, cause Salamanca to lose control of his vehicle,” wrote Judge Diane Johnsen for the court.
The judges also said jurors were entitled to be told about another angry text to the girlfriend, 2 minutes and 15 seconds before the crash, even though it might not have been the cause of the accident.
“It demonstrated Salamanca's state of mind (he was distracted and angry) less than three minutes before the collision,” Johnsen wrote.
According to police reports, Salamanca was drunk and driving without a valid license at 80 miles per hour when he attempted to pass two cars on East Route 66 near downtown and lost control. His sport utility vehicle collided head-on with Salamanca's GMC Yukon collided head-on with a compact car driven by 20-year-old Kyle Wible.
Prosecutors said Salamanca, who was raised in Flagstaff, was not in this country legally.
Jurors convicted him of manslaughter, leaving the scene of an accident, underage drinking and driving while intoxicated. He was sentenced to 22.5 years in prison.
Salamanca's attorney said jurors should never have been entitled to know of the two text messages, much less the profanity in both, saying that “served only to incite the emotions of the jury.”
But Johnsen said there was nothing wrong with telling the jurors about either, pointing out that Salamanca never disputed sending the texts.
His attorney argued that there was nothing to prove that the messages were sent while he was actually driving, saying they could have been typed while Salamanca was stopped at a traffic light or stop sign.
Johnsen said prosecutors did have an expert witness talk about the timing of the texts. She said that makes Salamanca's arguments relevant only to how much weight to put on the messages, not to whether they were admissible.
Nor did the appellate court have a problem with the jurors being given the profanity-laced content of the messages.
“The profanity tended to show that Salamanca was angry as he was driving just before the collision,” Johnsen wrote. “A reasonable juror could conclude that this anger caused him to drive recklessly.”
The issue of texting while driving has been raised at the Legislature for at least seven years, but such measures have not advanced far.
The Senate approved a broad texting ban in 2010, only to have the measure denied a hearing in the House. Two years later, the Senate approved a narrower ban, one applying only to new teen drivers, which also never cleared the House.
Phoenix adopted a texting-while-driving ban in 2007, with Tucson implementing its own ban five years later.