Texting While Driving

Effective  today, October 1, 2013, Florida’s ban on texting while driving law, Florida Statute, 316.305, goes into effect. One of the stated purposes of the law  is to “improve roadway safety for all vehicle operators, vehicle passengers,  bicyclists, pedestrians, and other road users.” In my opinion, however, the law has no teeth. In order to be cited by a law enforcement officer for texting while driving, the officer must first stop the person for some other traffic related offense, such as having a broken taillight or an improper lane change. The officer is then supposed to ticket the offender for the “secondary” offense of texting while driving. Thus, the stop cannot be based on the officer first seeing the driver texting.
I favor a law that allows the officer to immediately stop the vehicle if he or she sees someone texting. How the officer determines that the offender was texting at the time he spotted the broken taillight or made the improper lane change is apparently left up to interpretation and invites abuse by law enforcement. For example, won’t a few law enforcement officers make up excuses to pull a driver over when in fact the real reason they are pulling the driver over is that they saw the driver texting? This potential for abuse could have been avoided by simply giving the officer the right to stop the vehicle if he or she has a good faith basis to believe the driver was texting.
One positive aspect of the new law is that it makes admissible the cell phone records of the alleged traffic offender “in any proceeding” to determine whether a violation of the law has occurred. The “in any proceeding” language should remove any doubt whether cell phone records are discoverable and admissible in a civil lawsuit where the driver is alleged to have caused a car accident because he or she was texting.
Note that those of us who handle car accident cases were not waiting for the green light from the Florida legislature before we were subpoenaing drivers’ cell phone records. For years, most judges have correctly allowed for the discovery of such records where it has been alleged that the at-fault driver was texting at the time of the crash and where the driver was now denying that he or she was texting. Earlier this year I settled a car accident case for a significant amount of money just before the date of a hearing on my client’s motion to amend his complaint to plead punitive damages against the at-fault driver. The driver denied under oath several times in his deposition that he was texting at the time of the crash. I subpoenaed the driver’s T-Mobile cell phone records and discovered that at the exact time of the crash and for minutes before the crash the driver was sending and receiving texts.