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West Deptford resident Esther Jackson cares for her son Carsten Jackson, 4, who was suffered a severe brain injury after being hit by a car 2 years ago. Thursday, July 17, 2014. / JOHN ZIOMEK/Courier-Post

WEST DEPTFORD, N.J. -- Esther Jackson pulled back the living room curtains and pointed out the front window toward the end of her driveway.

In 2012, her toddler Carsten - Jackson's vibrant, curly-haired "little bug" - ran away from the baby sitter and onto Hessian Avenue.

Carsten, then 2, survived the impact of a 5,200-pound pickup truck towing a 20-foot boat.

But the hospital bed, wheelchair and heart monitor in the living room are an indicator of the lifelong challenges ahead for Carsten, who suffered a traumatic brain injury, and the family caring for him.

Carsten lay quietly on the sofa Thursday, two weeks after another operation in a series of surgeries. This time, doctors cut into the boy's thighs to repair muscles that atrophied with two years of immobility.

On the couch, both legs were wrapped in blue casts, with little toes peeking out of the bottom. The brain injury left the toddler unable to speak or walk. A heart monitor clipped to his left hand is the only way Jackson can tell if her son is in pain.

His eyes are open, Jackson said, but he hasn't woken up since the impact on July 21, 2012.

Carsten was hit three days after Gov. Chris Christie signed the "Kulesh, Kubert, Bolis Law," which gives New Jersey prosecutors tools to criminally charge drivers who kill or critically injure someone in crashes linked to distracted driving.

Jackson believes the driver, a 23-year-old man from Westville, New Jersey, was texting when he hit Carsten. The driver never stopped at the scene. A witness followed the truck, leading police to his home.

Despite court-ordered warrants for the driver's cellphone records, West Deptford Police could not prove the man was texting when Carsten was struck.

While the law is intended to help prosecutors, the law's sponsor, Assemblyman Paul Moriarty, said it hasn't been effectively used in New Jersey since its signing.

Texting and driving cases, he added, are difficult to build, and prosecutors aren't leveling charges.

Camden and Burlington county prosecutor's offices have not yet charged anyone under the distracted driving statute.

The Gloucester County Prosecutor's Office charged a 21-year-old woman with vehicular homicide in a 2013 crash in Washington Township that killed a 67-year-old pedestrian. The woman pleaded guilty this year to endangering an injured victim, a third-degree crime.

"If it were effective, we would be hearing of more cases," said Moriarty, D-Gloucester.

"It's hard for me to believe, with all the distractions and people using their cellphones, there haven't been more accidents resulting in serious bodily injury or death related to distracted driving."

Angela Donato, whose pregnant sister Tony Bolis was killed in a head-on crash in 2011, worked with Moriarty on the law.

She testified for stronger distracted driving laws on behalf of her sister and her sister's unborn baby RJ. Police determined another driver swerved into Bolis' lane while adjusting his GPS.

"The law isn't being enforced. There are some police departments that aren't even fully aware of the law," Donato said.

"In defense of the officers who do write (distracted driving) tickets, there is not one prosecutor's office in New Jersey that has guts enough to put a case forward."

Det. Nicholas Schock, with the Gloucester County Prosecutor's Office, considers his office's single guilty plea in the 2013 crash a win, even if the driver pleaded to a lesser charge.

"That was our first prosecution under this law and our first guilty verdict, be it not for vehicular homicide, but a step in the right direction," Schock said.

"The law itself is fantastic and very much needed. Distracted driving is becoming more prevalent than drunken driving. It's a widespread problem."

The law, he said, "doesn't always provide for criminal prosecution for every case."

Schock investigated Carsten's accident, an "absolutely horrible, tragic case."

"We found nothing that shows it was a distracted driving case," Schock said, noting the boy ran into the side of the vehicle.

"Typically, what we're looking for is the phone itself and some corroborating evidence to go along with it."

The driver turned his iPhone over to police during questioning. Detectives found messages were received and returned at 4:33 p.m., the same minute a witness called 911.

The iPhone messages served as probable cause for a communications data warrant of the driver's AT&T cellular data, Schock said.

But the report showed a gap in usage between 4:09 and 4:41 p.m. A note on the AT&T records indicated messages sent between iPhones using Apple's iMessage network would not be reported on the data log.

Further, Apple does not store messages sent through its iMessage service, which is "end-to-end encrypted," according to the company.

The federal Drug Enforcement Agency and FBI can't intercept iMessages in criminal investigations.

"If there was additional information we could garner, we would have pursued every single angle," Schock said.

"You can't apply for a warrant for something you can't get."

Jackson continues to push for justice. The statute of limitations to prosecute the driver ends July 21, exactly two years after the accident.

"Life has taken its toll and it's not fair," she said, noting she expects thoughtful iMessages from friends on the second anniversary of the accident.

"I have faith he's not going to be in this state for the rest of his life."



Copyright 2014USAToday

Read the original story: Distracted driving cases tough to build

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