Accused texter faces 9 years

A Costa Mesa driver may stand trial on felony charges of killing a pedestrian while driving and text messaging.

Martin Burt Kuehl, 42, is charged with vehicular manslaughter with gross negligence, although prosecutors acknowledge that they have no phone company records to prove that he was texting at the moment of impact.

Martha Ovalle, a Guatemalan immigrant working in Newport Beach as a nanny, died in the Aug. 29, 2008, accident. It took place about 8:30 a.m on Westcliff Drive near Dover Drive in Newport Beach.

Deputy Dist. Atty. Jason Baez said phone records showed Kuehl text messaging for about 30 minutes before his car struck Ovalle, as she crossed the street in a marked crosswalk.

One witness told police that, just before the collision, the driver behind Kuehl at the intersection had to honk to get him to notice that the light was green, Baez said.

“I’m not saying that I can prove or have to prove that he was texting when he hit the victim,” Baez said. “There’s definitely a bunch of inferences that he wasn’t looking. His phone was found open and [next to] the driver’s seat ... gross negligence is a state of mind. Texting is just one of the things he did wrong here.

“He had put the public at risk long before he ran this person over. The continuing inattention is why this is different than someone looking down for a second or two.”

Kuehl’s attorney, deputy public defender Adam Vining, was looking for Orange County Superior Court Commissioner James Odriozola to reduce the felony vehicular manslaughter charge to a misdemeanor vehicular manslaughter with ordinary negligence case.

“The judge specifically found that there is no evidence that Mr. Kuehl was text messaging that [morning],” Vining said. “He stated to police that the sun was in his eyes.”

The judge apparently didn’t buy it, and permitted Kuehl to stand trial on the felony count. Baez pointed out that Kuehl was driving westbound with the sun to his back that morning.

Ovalle had worked as a nanny for at least two Newport Beach families. She was sending some of her earnings to Guatemala to support relatives there, one of her employers said.

Kuehl is to be arraigned Monday. He faces up to nine years in prison if convicted.