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N.H. high court to rule on phone use, driving

CONCORD, N.H. — The New Hampshire Supreme Court will decide whether talking on a cellphone while driving, although legal here, can justify a conviction for criminally negligent homicide.

Lynn Dion of Franklin is appealing her conviction on that charge in the death of Genny Bassett, 36, on June 28, 2009.

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Around 9 p.m. that night, Dion was driving home to Franklin after visiting a friend. At about the same time, Bassett left her house to walk home her 60-year-old friend Elsa Gonnella, after an evening of playing cards and watching movies.

Dion made or received half a dozen cellphone calls during her 37-minute drive, records show, the last to a friend as she approached the Ward One Bridge, where Bassett and Gonnella were heading east.

Dion said she never saw the women in the freshly painted crosswalk. Dion braked when she heard a loud pop and glass showered into her car.

Her vehicle had hit Bassett’s right leg and Bassett’s head hit the passenger side of the windshield, fracturing her skull and causing a fatal head injury. Gonnella was knocked to the ground and lost consciousness.

Merrimack Country prosecutor George Waldron told jurors there was no other plausible reason but cellphone distraction for Dion to have hit them.

Dion’s lawyer asserts on appeal that because talking on a cellphone while driving is not illegal in New Hampshire, such conduct is not enough to convict someone of criminally negligent homicide.

‘‘There was no law in 2009, nor is there any law in New Hampshire today, that prohibits or restricts drivers from operating a personal vehicle while talking on the phone,’’ Allison Ambrose wrote in her brief.

The state argues on appeal that conduct doesn’t necessarily have to be illegal to be considered blameworthy.

Senior Assistant Attorney General Susan McGinnis cites in her brief a 1992 ruling in which the court upheld the conviction of a man who crossed into the breakdown lane and killed a woman.

The case marks the first time the court will address cellphone use in the context of a criminally negligent homicide conviction. The justices will hear arguments Oct. 17 at Monadnock Regional High School.

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