This month, there will be lots of discussion online and in the news media about distracted driving since April is National Distracted Driving Awareness Month (see our earlier post for details). However, being aware of the dangers of driving distracted is one thing; knowing how to deal with the aftermath of a distracted driving crash is another.
If you have been involved in an accident where you believe the other driver was driving distracted, causing the crash and your injuries (as well as those of your passengers), then how can you prove it? That’s a difficult question to answer.
Police Hurdles with Distracted Driving Laws
Nationally, police officers are reporting that it is not easy for them to catch and stop a driver on the roads who is driving while using their cell phone. Down in Georgia, for instance, patrol officers admitted to news media that they find it difficult to enforce Georgia’s texting while driving law (it’s banned there, as it is in Indiana and Illinois).
The problem is easy to understand: the police officer cannot see inside the cars driving by in order to confirm that someone is using their phone. While the police may try and spot someone who doesn’t have both hands on the wheel, that is not enough for probable cause to pull the car over.
They need to see someone with phone in hand, and apparently texting on that phone, before they can stop the person. Otherwise, they are in violation of constitutional protections against unreasonable search and seizures. Under the constitution, the police cannot stop someone and pull them off the road unless they have “probable cause” to do so.
Moreover, even if the police officer does stop someone for texting while driving, that may not be a successful effort in the long run. Many criminal defense lawyers have ways to challenge any arrests or tickets issued based upon texting while driving laws, resulting in these cases being thrown out or dismissed.
Therefore, the criminal laws on the books in Indiana and Illinois may not be an effective deterrent at this point in preventing people from using their phones while driving and risking a crash because of their distracted driving. Until things change, we cannot depend upon the criminal justice system to stop this epidemic of distracted driving in our part of the country.
Which means there are going to be lots of distracted driving accidents here. And some of those distracted driving accidents are going to result in serious, life-altering injuries and even the wrongful death of innocent accident victims.
How Can a Distracted Driving Victim Prove That a Distracted Driver Caused the Crash?
After there has been a serious car crash, victims will often seek out the help of an experienced auto accident law firm to help them get justice. They will want to file a lawsuit, if necessary, for negligence damages that will force the driver who caused the accident to pay for the victims’ medical expenses, lost wages, pain and suffering, rehabilitation, physical therapy, etc.
These claims will need evidence, either in the form of testimony or documents, that will be admissible in court to support their allegations. They will need proof that the driver was distracted at the time of the crash.
How can the personal injury case do this, when the police have such a hard time even pulling someone over for texting while driving? It’s not easy.
Evidence to Show the Driver Was Distracted at the Time of the Crash
Investigations may be detailed and intense, as evidence is gathered to prove a distracted driving claim. It can be done, of course. Among the various kinds of documents and witness testimony that can be used to show distractions at the time of the accident are:
1. Testimony From Those Who Witnessed the Accident.
Some accidents occur on rural roads or byways here in Indiana and Illinois where there aren’t many witnesses; others may happen late at night or early in the morning when not that many people are around. However, lots of distracted driving accidents do happen in circumstances where there are witnesses to the event. They may include people in the car with the driver, as well as people who tried to help the accident victims right after the accident occurred.
2. Driver Admission.
There will be times when the driver will admit to being on the phone at the time of the crash. He may admit to it at the crash site, before his insurance adjuster or defense attorney has had the chance to instruct him to be silent.
3. Police Officer or EMS Technician Testimony.
The police officers and emergency medical personnel that respond to a car crash may observe details that reveal the driver was distracted at the time of the crash. The position of the cell phone may be a factor here. The cell phone still being on, or still in the driver’s hand, are other factors. Bruising or other injuries may suggest that there was a cell phone in the driver’s hand at the moment of impact.
4. Cell Phone Records.
It is possible to subpoena the cell phone records of the driver, and confirm that text messages were being sent at the time of the crash. These records can also show that the phone was active and being used in a spoken conversation at the time of the accident.
5. Surveillance Cameras.
More and more, there are cameras monitoring traffic on Indiana and Illinois roadways, as well as security cameras that are designed to prevent crime by recording vehicles that approach their establishments (like banks, jewelry stores, etc.). It is possible that they may have captured images of the driver on her phone, behind the wheel, in the minutes or seconds before the accident occurred.
Aggressive Defense to Distracted Driving Claims
Of course, the distracted driver will have legal counsel seeking to minimize or refute this evidence. Usually, these are lawyers hired by his insurance company who are well-versed in distracted driving defense.
Distracted driving injury victims can expect a legal fight, usually, which can include evidence challenges (like hearsay) to be overcome with legal arguments. Accident reconstruction experts hired by the defense may try to argue an alternative theory of why the crash happened, and the victim will need to be ready with experts of her own to discredit their theories.
Victims Need to Be Prepared for Legal Fight
Bottom line, distracted driving is considered to be a public epidemic by federal agencies like the National Highway Traffic Safety Administration (NHTSA) and by state agencies like the Indiana Department of Transportation. The police are not able to stop this epidemic effectively because by its very nature, driving while using a phone is easy to hide from a passing traffic patrol car.
More and more claims are going to be filed by victims of drivers who have been negligent in their duty to drive safely because they chose to use their phone while driving a motor vehicle. Then, those distracted drivers will have experienced defense attorneys seeking to limit their exposure for liability in these accidents, and the tricky nature of proving up distracted driving as the probable cause of an accident works in their favor.
Distracted driving victims need to be ready to fight for justice today. Be careful out there!