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Distratcted Driving - Phone Calls and Texting

The dangers of distracted driving

Despite changes to Georgia law dealing with use of cell phones while driving in 2010, distracted driving, whether due to text messaging or talking on the phone, remains a significant cause or factor in car accidents in Georgia. According to the Centers for Disease Control in Atlanta, an average of 9 people are killed due to distracted driving in the US each day, and 1000 people are injured. The Federal Motor Carrier Safety Administration reports that commercial drivers who text while driving are 23.2 times as likely to be involved in a crash, near crash, or lane deviation. And even talking on a phone while using a hands-free device can cause distractions and increase the likelihood of accidents, according to some studies. Clearly, distracted driving is a significant concern for Georgia drivers and passengers, and determining whether a driver was distracted can be a major part of the investigation of a personal injury claim.

Official Code of Georgia, Annotated (OCGA) § 40-6-241 states, in part, that

"A driver shall exercise due care in operating a motor vehicle on the highways of this state and shall not engage in any actions which shall distract such driver from the safe operation of such vehicle...."

The Georgia Code section specifically addresses use of a cellular phone, stating that, except as stated in Georgia Code sections 40-6-241.1 and 241.2 (which deal with text messaging by all drivers, and use of a phone for any purpose by minors), proper use of a mobile phone does not legally constitute "distracted driving," at least under the statute. Aside from these provisions,

Georgia laws on telephone usage (including text messaging) and driving

Since July 1, 2010, under OCGA § 40-6-241.2, it has been illegal for Georgia drivers who are 18 years old, or who hold a Class C (standard) license, to:

"operate a motor vehicle on any public road or highway of this state while using a wireless telecommunications device to write, send, or read any text based communication, including but not limited to a text message, instant message, e-mail, or Internet data."

A "wireless telecommunications device" is broadly defined by the statute as:

"a cellular telephone, a text messaging device, a personal digital assistant, a stand alone computer, or any other substantially similar wireless device that is used to initiate or receive a wireless communication with another person. It does not include citizens band radios, citizens band radio hybrids, commercial two-way radio communication devices, subscription based emergency communications, in-vehicle security, navigation devices, and remote diagnostics systems, or amateur or ham radio devices."

Thus, among other things, text messaging, emailing, browsing the internet, or virtually any other action with a tablet (such as an iPad) or phone is prohibited while driving. This prohibition applies regardless of the age of the driver. Separate rules govern commercial motor vehicle operations, but these drivers are also often covered by additional federal regulations, as discussed further below.

Aside from the rules that govern all non-commercial drivers concerning text messages, OCGA § 40-6-241.1 completely prohibits, except in emergency situations, use of a phone for texting, driving, or any other purpose by drivers under age 18 who hold an instructional permit or Class D license.

Federal rules for commercial drivers regarding on telephone usage and text messaging

The Federal Motor Carrier Safety Administration (FMCSA) is the division of the US Department of Transportation that is responsible for establishing rules and regulations governing interstate motor carriers (commercial vehicles and tractor trailers) and their drivers. Since September 2010, the FMCSA has prohibited any commercial driver operating a vehicle in interstate commerce from texting while driving. 49 CFR (Code of Federal Regulations) § 392.80 establishes that "No driver shall engage in texting while driving" and that a motor carrier shall not "allow or require its drivers to
engage in texting while driving." A similar but later-passed rule, 49 CFR § 392.82, prohibits using a hand-held cellular phone by any truck driver while driving. Another provision of the federal regulations, 49 CFR § 390.50, allows the use of a cell phone if used in a manner allowing it to be used hands-free.

Distracted driving and Georgia car accident cases

A Georgia car accident victim who is injured by a distracted driver may be able to use that fact to prove fault for the collision or to increase the amount of damages available. A claimant or plaintiff who can show that the driver was distracted, either in violation of a Georgia statute (OCGA § 40-6-241 and subsequent sections) or one of the federal regulations described above, may be able to use that fact to convince a judge or jury that the driver was liable. Because it may be difficult to prove that the driver was distracted, texting, or talking on the phone (and drivers may lie), it is important to seek preservation of evidence following an accident. This is important in any case, but particularly in the case of a commercial/tractor trailer driver who is subject to strict prohibitions on phone usage while driving.

In appropriate cases, it may be possible to subpoena phone records or examine the mobile device to determine whether the driver was texting, talking, or otherwise using the phone while driving. Aside from proving liability on the part of the at-fault driver, evidence of violation of laws on distracted driving may open the door to availability of punitive or other increased damages. Although the Georgia Court of Appeals has held that proper use of a phone to talk is not a basis for an award of punitive damages, it is possible that texting might be, and it remains possible that under the proper circumstances, even talking on the phone, if part of a pattern of distracted driving proven by the victim, could ultimately support a punitive damages claim.

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