An In-Depth Look at Texting and Driving in Florida

Texting and driving is a relatively new problem – particularly in Florida – although distracted driving is not. Florida is the second worst in the nation for having distracted drivers at the wheel, followed closely by Louisiana. With 92% of drivers in the nation admitting that they have used a cell phone while driving a car, it is not surprising that texting and driving lead to accidents and personal injury.

Florida Texting and Driving Laws

In Florida, there is currently a ban on texting while driving. Florida Statute 316.305, known as the “Florida Ban on Texting While Driving Law,” prohibits someone from driving a car while manually typing or reading data on a wireless communications device. The law covers everything – texting, emailing, or instant messaging. Violation of this law is classed as a noncriminal traffic infraction and is punishable as a nonmoving violation. This means a $20 fine with no points added to the driver’s record.

Critics of the law believe that it does not do enough to curtail text and drive accidents, and have been pushing for stronger legislation to designate texting while driving as a primary offense. Law enforcement currently cannot pull someone over for texting and driving without a primary offense, such as speeding. Under the proposed law, the offense would be subject to a $30 fine. If the driver causes a crash, then six points would be assessed against their license. The “FL DNT TXT N DRV Coalition,” along with at least 25 local governments (including Miami-Dade County) are in favor of making driving and texting a primary offense.

“It is about time texting and driving becomes a primary offense,” says Tristan Nunez, founder of the Coalition. “As a professional racecar driver, I started driving before most, so I learned, early on, that traffic safety – on the racetrack or on the street – is the key to keeping everyone safe.”

Critics of the law believe that it could result in an increase of racial stops. “It could be a pretext to stop certain individuals,” Sen. Perry Thurston, D- Lauderhill, has been reported to say. The ACLU has reported that in Florida after the law requiring seat belts was instituted, black motorists were more likely to be stopped and ticketed than their white counterparts.

Federal law is fairly far behind state legislatures. However, drivers operating commercial motor vehicles, bus drivers, or motorists transporting hazardous materials are all banned from texting while driving. In 2009, President Obama issued an executive order which prevents federal employees from texting and driving while driving on government business or using government equipment.

2019 Florida Texting and Driving Law Update: 316.305(3)(a) Wireless Communications While Driving Law

Effective October 1, 2019, texting while driving is a primary driving offense in the state of Florida.  Prior to October 1, 2019 Law enforcement officers could not pull someone over for texting and driving without a primary offense, such as speeding. The 2019 amendment to Florida Statute 316.305(3)(a) enables law enforcement officers to pull over a driver and issue a citation just for texting and/or using their phone while driving.  Distracted driving is no longer a secondary offense, it is a primary offense in Florida.  This means that law enforcement officers will be looking to pull over drivers who are using their phones while driving in order to issue citations.

The 2019 amendment specifically states that a person may not operate a motor vehicle while “manually typing or entering multiple letters, numbers, symbols, or other characters in a wireless communications device.”  This basically means that a driver can no longer type into their phone while driving.

The new law specifically states that a “wireless communications device” means any “any handheld device used or capable of being used in a handheld manner, that is designed or intended to receive or transmit text or character-based messages, access or store data, or connect to the Internet or any communications service.” This is a rather broad definition that includes any and all connected devices including but not limited to cellular phones, tablets, laptops and video games.

There are some exceptions to the Florida Statute 316.305(3)(a). The following are exceptions where a driver can legally use their phone/device while their car is stationary (i.e.,  stopped on the side of the road, at a red light…):

  1. Performing official duties, such as operating an emergency vehicle (i.e., law enforcement, fire service professionals, and emergency medical service providers);
  2. Reporting an emergency, a crime or other suspicious activity to law enforcement;
  3. Receiving messages that are related to the operation and/or navigation of the motor vehicle;
  4. Receiving safety-related information (emergency, traffic, and weather alerts);
  5. Receiving data used primarily by the motor vehicle;
  6. Using the device in a hands-free manner for navigation purposes; and,
  7. Using the device in a way that does not require manual entry of characters, except to initiate a function or feature.

Texting and Driving Statistics in Florida

Nationwide, teenagers appear to feel the worst effects of car accidents from texting and driving. In 2015, 3,183 drivers between the ages of 15 to 19 were involved in fatal car accidents, according to the NHTSA. The same study found that over 221,300 teenagers were treated in emergency rooms for damages sustained as a result of distracted driving. Overall, in 2015, there were 3,263 distracted driving deaths, as compared with 48,613 motor vehicle fatalities – comprising 7% of all fatalities.

drivers-involved-in fatal-crashes-by age-distraction-cell-phone-use

In Florida, the teenage population experienced an increase in injuries of 18 percent, while fatalities have increased 30 percent in 2015 alone. This is in spite of the law on the books, which took effect in 2013. In the four years of its existence, distracted driving car crfashes have increased from 39,000 to 49,000, according to Florida’s Department of Highway Safety and Motor Vehicles. Miami-Dade and Broward County rank third and fourth in the state for distracted driving accidents, with the highest incidents of texting and driving across the state.

Midwesterners are the safest drivers, but southerners tend to use their phone the most while driving. This likely contributes to the statistics demonstrating the 4 most distracted driving states are in the South (Mississippi, Tennessee, Florida and Louisiana).

Young drivers are more involved in crashes than any other age group, presumably due to their inexperience with driving. However, studies show that Millennials and young people are also guilty of being the age group most likely to use cell phones while driving, too. “Strong laws and education are key,” said Kara Macek, Senior Director of Communications and Programs of the Governor’s Highway Safety Association (GHSA). “Inexperience plays a big part in young drivers’ challenges, so it’s important for teens to see how and why distraction is dangerous during the learning-to-drive process.”

The Government Response to Texting and Driving in Florida

Florida is one of only four states that makes all texting while driving a secondary offense – other states that do have a ban make it a primary offense at least some of the time, such as within school zones. States with stricter laws on distracted drivers do appear to have a correlation with lower rates of personal injury and car accidents. Vermont, for example, has some of the strictest laws in the nation, as well as some of the lowest rates of distracted drivers. As of June 2017, 14 states plus the District of Colombia have banned drivers from hand-held phone use and texting while driving is outright banned in 46 states plus D.C.

There does appear to be data to support the relationship between stricter law enforcement and a reduction in distracted drivers. The National Highway Traffic Safety Association found that during periods were there was high visibility enforcement of handheld device bans in California and Delaware, handheld use dropped by around 1/3 in both states. New York and Connecticut demonstrated similar results, with the devices being used less frequently during the high visibility enforcement periods.

“It’s unfortunate that much of the change in perceptions about drunk driving, seat belts, and now distracted driving is most influenced by gruesome images and videos,” says Mr. Nunez. “[In]stilling proper legislation and being strict in terms of enforcement” is crucial in getting people before they, or someone they love, are hit by these tragedies, he says. And he is not alone – support for texting bans and cell phone restrictions for driving is strong across the nation. Nearly 90% of drivers would support a texting ban, with many stating that texting while driving is either a very serious threat to safety or is completely unacceptable.

Distracted driving has become such a public safety concern that the National Highway Traffic Safety Administration (NHTSA) has developed a program combating texting and driving at www.distraction.gov. The NHTSA predicts that nearly 400,000 people were injured by distracted driving in 2015 alone. People that used their phone while driving spent an average of 7 percent of their drive time on the phone, and it was used about 6 times per trip. The NHTSA predicts that sending or reading a text takes 5 seconds off the road. At 55 mph, it is akin to driving the entire length of a football field with your eyes closed.

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The Problem with Walking and Texting Injuries – “Petextrians”

Of course, distracted driving is a significant issue that can result in traumatic injuries – but what about other distracted people on the roads and sidewalks?

Walking and Texting Statistics

Recent studies have shown that the number of accidents involving pedestrians who are distracted is steadily rising. A study from The Ohio State University estimated that in 2010, 1,500 people were treated in emergency centers for injuries related to cell phone use while walking – double the incidents reported five years earlier. Stony Brook University scientists revealed that when people used their cell phones while walking, they were more likely to veer off course – by 61 percent. According to the National Center for Statistics and Analysis, nearly 6,000 pedestrians were killed in car accidents in 2016 – 16 percent of all traffic fatalities. This is up nine percent from the previous year. The NHTSA has estimated that in 2015, 12 percent of people killed in distracted driving crashes were the pedestrians.

“Pedestrian fatalities are rising nationally, and unfortunately we don’t have a single answer to point to for why that’s occurring,” said Ms. Macek. A report released by the GHSA listed phone use by drivers and pedestrians alike as a potential factor in pedestrian incidents but also included the stronger economy, an increase in the number of miles vehicles travel, and more people simply choosing to walk instead of drive.

While it is unknown whether or not the pedestrians themselves were also distracted in these cases, it seems clear that when combined with the growth of distracted drivers, distracted walkers seem more at risk than ever. The NHTSA believes that distracted pedestrians were a contributing factor in the 4,200 pedestrian deaths in traffic crashes in 2010. In Seattle, one study revealed that nearly a third of pedestrians at major intersections listened to music, texted or were using a cellphone while crossing and took longer to cross the road compared to those who didn’t. They were four times more likely to ignore traffic signals or fail to look both ways as their undistracted counterparts.

Walking and Texting Laws

Some states have started imposing regulations to prevent the existence of distracted pedestrians. In New Jersey, one lawmaker has introduced a ban against walking while texting. If found in violation, individuals would be facing fines of up to $50, or even imprisonment of up to 15 days. Bans similar to this have all been proposed and rejected in Arkansas, Illinois, Nevada and New York. In Hawaii, legislation out of Honolulu recently went into effect that prevents pedestrians from using cell phones while crossing an intersection. Violators face fines from $15 and even $99 for a third-time offender. Honolulu is the first major American city to pass a law like this after they cited a large number of pedestrians being hit at crosswalks.

In Florida, state officials have also begun to raise awareness about the dangers of distracted pedestrians. The Florida Department of Transportation has started targeting Broward and Miami-Dade counties to reduce pedestrian and bicycle accidents there. In 2015, it started a campaign to “Stop the Talk. Just Walk.” The Miami metropolitan area is among the most dangerous areas for pedestrians: In 2014, the D.C.- based group Smart Growth America listed South Florida as its fourth most dangerous area for pedestrians. Florida has the second highest pedestrian fatality rate per 100,000 people, according to the NHTSA. Jacksonville, Florida has the fourth-highest rate of pedestrian fatalities among major U.S. cities.

The GHSA believes that “public education on the dangers of distraction is crucial for both drivers and pedestrians,” according to Ms. Macek. There is a burden on the safety community to “convince people to keep their eyes on the road and be aware of their surroundings.” However, she cautions that ultimately, “drivers are the ones operating a 4,000 pound, potentially lethal weapon – a task that requires full attention.” While pedestrians can do their part to remain alert to potential dangers, the onus remains on drivers to keep others safe.

Texting While Biking in Florida

Of course, some of the most serious injuries and common fatalities occur when drivers collide with cyclists. The NTSA stated that 840 cyclists were killed in 2016 – the highest reported number in 25 years, coupled with an increase of 12 percent in the last year alone. Of course, other factors besides distracted driving may affect these numbers: lack of riders wearing helmets, failure to use flashing lights or bright clothing, and even failure to adhere to basic road safety rules are all contributing factors to cyclist deaths on the roads. However, across the board, most experts agree that the increase in bike fatalities on the road can be attributed to cell phone use.

Research from the University of Groningen in the Netherlands shows that cycling while texting inherently changes the way riders bike. In the study, 24 participating engaged in common cycling activities on a public bike path. Some texted on a smartphone, conventional phone, some spoke to the cyclist beside them, and some even played a game on their phones. The control group rode without doing any sort of accompaniment activity. The study showed that any time a phone was involved, the cyclist biked at a slower pace compared with those who didn’t have a phone. Swerving also increased when cyclists were on their phones, and they noticed fewer signs and warnings on the road.

Regardless of this study, and the seemingly obvious concession that cyclists who multi-task would be more distracted than cyclists who don’t, most public safety officials do not feel that distracted cycling is a major issue. Only a few cities in the country regulate the use of mobile phones and biking. Chicago has made offenders subject to a fine of between $20-50 if caught talking or texting while biking, and Philadelphia also prohibits cyclists from using mobile phones. Florida prohibits the use of headphones for cyclists, but that’s about as far as the state regulations go in this regard. The statute applicable to drivers and texting does not apply to bikes. The state appears to be in desperate need of an overhaul. Florida has the most bicycle fatalities in the nation with four of the deadliest cities for cyclists: Miami, Jacksonville, Tampa, and Orlando. In fact, between 2012 and 2014, bike fatalities in Miami-Dade County jumped 260 percent. Florida is not alone in its lack of initiative – distracted biking legislation has failed in every other state, including Oregon, New York, and Virginia.

How Texting Affects Personal Injury Lawsuits

While the country is a patchwork of criminal statutes when it comes to distracted driving and texting, most states are fairly uniform in that if a driver is at fault and causes personal injury or death, they can face significant civil consequences. Indeed, across the board, awards for personal injury lawsuits where texting while driving is at issue are only increasing over the years, often exceeding $1 million for damages. At least one case in Texas involved a commercial driver who was talking on their cell phone at the time. The jury delivered a $43.5 million verdict for the victim. The jurors had been told that the driver had texted more than 2,000 times while driving in the five-month period before the accident, and had been texting within 4 minutes before the accident.[1]

In Florida, personal injury lawsuits involving distracted driving are also on the rise, with one victim recently awarded $4.3 million in a texting and driving case against a single individual. In 2010, Cacilia Carter’s boyfriend was driving and texting, lost control and ran a stop sign before ultimately colliding with a tractor-trailer. Ms. Carter suffered severe, permanent brain injuries. She was comatose for three weeks following the accident and requires the use of a wheelchair. Her boyfriend was found to be at fault. Her injuries were life-altering, and her boyfriend failed to have any insurance or vehicle registration.[2] Notably, the award came before Florida had instituted its ban on texting and driving.

In 2016, a Connecticut woman was awarded $1.4 million after a distracted driver, talking on his cellphone while executing a turn, struck her and broke her wrist, as well as causing permanent injuries to her spine. This was the largest settlement in Connecticut since the government instituted a handheld device ban in vehicles in 2005.

The trend is clear – jurors and courts are becoming less tolerant of distracted drivers who cause personal injury to others on the road while using their cell phone.

Damages in Florida Texting and Driving Cases

In Florida, many courts are starting to hold higher standards for drivers who text and cause accidents, with some holding that it rises to the level of recklessness. Many plaintiffs are starting to seek punitive damages under Florida Statutes 768.71. Punitive damages are an extra level of damages that go beyond merely compensating the victim for their harm. The plaintiff has to prove gross negligence which indicates a wanton disregard for the rights of others, and the court will then ‘punish’ the defendant for such disregard.

In 2011, the first Florida court allowed punitive damages for a fatality that occurred because of texting and driving.[3] The defendant had denied he had been texting; however, the plaintiff was permitted to rely on cellular data, which showed that the defendant had been checking his voicemail, and had sent a text message within one minute of the accident.

While there has not been a definitive answer from the Florida Supreme Court about whether punitive damages will be awarded based upon use of a cell phone by a driver, it seems apparent that punitive damages should be pled by practicing attorneys when there is evidence of cell phone use in cases where there are significant physical injuries. The Florida Supreme Court has allowed punitive damages to be awarded for drinking and driving, and it does not seem like much of a stretch for plaintiffs’ attorneys and their experts to liken the two.

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Who is Responsible for Texting and Driving Cases?

Of course, the responsible party seems like it should be the distracted driver who caused the accident due to their lack of care. However, one plaintiff out of the U.S. District Court for the Eastern District of Texas decided to sue Apple, Inc. for its role in perpetuating the ability to text and drive. In Meador et al v. Apple Inc., two people were killed and a seven-year-old became a paraplegic after a driver became distracted while checking his text messages.[4] The lawsuit claimed that Apple could have designed its iPhone to lock out drivers, preventing them from using the phone to communicate while driving.

The case was ultimately dismissed after the judge determined that a “real risk of injury did not materialize until [the driver] neglected her duty to safely operate her vehicle by diverting her attention to the roadway.” Several other plaintiffs have attempted to sue other companies, like Sprint, for the role manufacturers play in the ability of drivers to text, FaceTime, or surf the internet while operating a motor vehicle. The success of these cases remains to be seen. However, the inherent question is – do technology manufacturers owe a duty of care to people on the road?

For what it’s worth, it seems that technology manufacturers have taken a proactive approach to this issue, without admitting any responsibility. Apple has rolled out a new feature in its latest iOS release, featuring a ‘Do Not Disturb’ mode that is activated while driving. Android had already offered this sort of technology. The mode switches off alerts that tempt individuals to use their phone while driving and can be set up to send a text message to those who contact people while driving, letting them know they cannot answer until they are stationary. The feature doesn’t fully prevent texting or alerts, but instead aims at reducing the temptation to be distracted, and encourages drivers to keep their eyes on the road.

Preparing for a Texting and Driving Injury Case in Miami

Preparing a lawsuit involving distracted drivers can be a complex undertaking for even the most experienced attorney. Distractions can be anything from the driver eating, looking for something they dropped, putting on make-up, or changing the radio station. This can be difficult to prove without an admission from the driver. One positive aspect of cases where a distracted driver was distracted by his cell phone is that it is becoming increasingly easier to pull evidence showing the use of a cell phone while driving. Cell phone companies have teamed up with the government to raise awareness about the dangers of distracted driving, and have also made it easier for lawyers and law enforcement to obtain phone records of those suspected of texting while driving.

The easiest way to get cell phone records showing the activity on the phone immediately before an accident is to get the defendant to voluntarily sign a release. Of course, the defendant is unlikely to volunteer this information, so the next step would be to issue a subpoena directly to the phone company. Each company has a different and often complex process to subpoena records, which must be followed or they will not comply. One downside is that before a subpoena can be issued, a lawsuit must be filed. So, if a party waits too long to file their case, then it could compromise the ability to obtain cell phone records, particularly from companies that purge their records regularly.

South Florida Texting and Driving Victim’s Lawyer

If you have been injured in an accident where you suspect someone – whether it is a pedestrian, cyclist or driver – has been distracted by their cell phone, you must speak with a competent attorney as soon as possible. Prosper Shaked is a trial attorney who will diligently and aggressively prepare your case to ensure you get full reparations under the law. If you have been injured by a distracted person in a traffic accident, get in touch with the Law Offices of Prosper Shaked today. For a free consultation, contact our law offices today at (305) 690-0244.

  1. Jenny Hennes v. JC Fodale Services Supply LLC., Et. Al
  2. Cacilia Carter v. Joseph Edward O’Guin, Flagler County, Florida.
  3. Margaret S. Caskey, et al. vs Astellas Pharma US, Inc. et al., Collier County Case No.: 112010CA0005820001XX (Fla. Collier Cir. Ct. 2011)
  4. Meador v. Apple, Inc. (2016) WL 4425527 (E.D.Tex.)
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