Every year, more than 170 billion cell phone texts are sent and received. Each year, an average of 3,000 people die and 450,000 are injured in motor vehicle accidents involving distracted drivers. Ten percent of all drivers who are 15 to 19 years of age involved in fatal crashes were distracted when the accident occurred. The significant safety problem of operating a cell phone, sending or receiving texts, or manipulating hand-held devices while driving has grown exponentially over the past decade and has reached epidemic proportions. According to the National Highway Transportation Safety Administration (NHTSA), at any given moment across America, approximately 660,000 drivers are using or manipulating cell phones while driving. Lawyers and insurance claims professionals should be familiar with the nuances of these laws in the states in which they conduct business. And as of April 19, 2019, Arizona joined 47 other states who have previously passed laws governing the use of handheld phones and/or texting while driving. Up until now, only certain cities and counties regulated this activity through ordinances (e.g., Phoenix, Flagstaff, and Tucson prohibited texting, while San Luis and Pima County ban all use of hand-held wireless devices).
Auto accidents are caused by a variety of factors, but a growing cause of accidents is the use of electronic hand-held devices and texting while driving. State legislatures have been scrambling to make their roads safe by passing laws that prohibit dangerous activity yet do not totally infringe on the personal liberty of Americans. It is no easy task. A defendant’s use of a cell phone at or around the time of an accident is easy to determine and can be particularly damaging in a negligence lawsuit wherein the defendant’s actions are being scrutinized.
On April 18, 2019, Arizona’s legislature passed HB 2318, partly in response to the death of Salt River police officer Clayton Townsend, who was struck and killed in January while on a traffic stop by a driver distracted by using a cell phone. This new law creates a new Ariz. Stat. § 28-914, entitled “Use of Portable Wireless Communication Device While Driving.” Under the new law, drivers are prohibited from any kind of cell phone use while driving, including talking, texting, typing, or browsing internet or social-media sites, unless they are using a hands-free mode. The following use of cell phones is now illegal in Arizona:
- Holding a cellphone in any way while talking on the phone, including propping it up with a shoulder.
- Writing, sending, or reading any text-based communication including a text, instant message or email.
- Watching any kind of video or recording video.
The following cell phone use is allowed in Arizona while driving:
- Swiping a phone screen to make or accept a phone call.
- Talking on the phone if using an earpiece, headphone device or device worn on a wrist.
- Using voice-based communication, such as a talk-to-text function.
- Using a GPS system.
- Using a handheld cell phone while stopped at a traffic light or stop light.
- Using a handheld cell phone to call 911.
With this new law, Arizona becomes the 48th state to ban texting and the 18th to ban hand-held cell phone use while driving, leaving only Montana and Texas as the last two holdout states. Neither has specific laws dealing with using cell phones or texting while driving for drivers over 21.
The use of cell phones has become so prolific and commonplace that virtually any accident should be investigated with regard to cell phone use, and insurance claims professionals and lawyers involved with auto accidents must become familiar with the ever-changing laws that govern this new phenomenon. Cell phone data can be the critical piece of evidence in a car collision that helps prove who was at fault, and with laws preventing such usage, a swearing match auto accident could become a slam dunk by showing that the defendant was using his or her cell phone in violation of state law and that this is negligence per se. Gathering and interpreting cell phone record evidence almost certainly requires expertise in the area of preserving and interpreting cell phone evidence. Cell phone saturation is almost universal and according to a 2017 Pew Research Center study, 95% of Americans own and use cell phones. When dealing with auto accident cases, it is good to know that cell phone companies keep two basic types of records; Call Detail Records (CDR) and billing records. The former contains information such as the calling phone number, receiving phone number, time and date of a call to the second, duration of a call to the second, and the first and last cell sites used by the phone during a call. The latter usually only contains calls with the time a call was placed to the minute and the duration to the minute. Either would be useful in an auto accident case.
A summary of the law in all 50 states with regard to the use of cellphones while driving can be found HERE. For questions involving auto insurance subrogation and/or the handling of subrogation anywhere in the U.S., please contact Gary Wickert at [email protected].