It is not uncommon to see your fellow Florida motorists, head tilted downward and not on the road, utilizing their mobile device to text while their vehicle is in motion. Florida is now catching up to the rest of the country in one important area: giving teeth to our texting while driving law. Enacted in 2013, Florida Statute 316.305, known as the “Florida Ban on Texting While Driving Law”, is intended to improve roadway safety by preventing crashes related to the act of text messaging.
Secondary Offense Not Enough
This statute, however, only authorized law enforcement officers to stop motor vehicles and issue citations as a “secondary” offense to persons who were texting and driving. In other words, police were only able to cite motorists for texting if they were pulled over for other reasons, such as speeding or failure to yield. This law did little to curb accidents caused by “distracted driving”, which were numerous, and often deadly.
Governor Ron DeSantis said that in 2016 alone, Florida had nearly 50,000 accidents caused by distracted driving, resulting in 233 deaths. It doesn’t take a Google Search and deep dive into the various studies that have been published to know that distracted driving, particularly due to texting and driving is extremely dangerous. Florida, according to a study, was noted to be the second worst state for distracted driving.
Primary Offense as of July 1, 2019
The law has been updated under a bill signed by Governor DeSantis. As of July 1, 2019, any violation of Florida Statute 316.305 will be a “primary” offense. Therefore, law enforcement officers will be allowed to detain a motorist and issue a citation solely for texting while driving. While the law took effect on July 1, only warnings will be given until January, when officers can begin to write citations.
There are some finer points and exceptions to the law. While drivers are allowed to hold the phone to talk while driving, they will not be able to do that starting October 1 in a school zone or active work zone with workers present.
Significantly, police officers can only stop a driver for texting and driving when the car is in motion. Therefore, the days of honking a driver stopped ahead of you at a red light when the light turns green will not be a thing of the past. Legally speaking, a police officer is not allowed to ask for or take the driver’s phone to see if they were texting.
Impact in Litigation
In the personal injury arena, it has become increasingly prevalent for plaintiff attorneys to make a motion to amend their complaint to add a count for punitive damages if it can be proven that the at-fault driver was distracted by his or her smartphone and was texting at the time of the accident. Historically, while punitive damages have been utilized by plaintiff attorneys against impaired drivers under the influence of alcohol; with most people now owning a mobile device, it was only a matter of time for plaintiff attorneys to seek punitive damages in accidents where texting at the time of the accident was a factor.
While traffic citations are generally not admissible in a personal injury trial, the fact that a citation was given provides plaintiff attorneys, during discovery, with a tool to seek other generally admissible documents such as cell phone records to establish their distracted driving claim. Even if the conduct of a driver texting and driving does not rise to the level of gross negligence required to make a punitive damages claim, a defendant driver can still be negligent as a result of unlawful cell phone use.
In sum, I would anticipate plaintiff attorneys utilizing this strengthened law in seeking amendments to their complaints to include a count for punitive damages which can be awarded with a showing of intentional misconduct or gross negligence. This will be an area of increased activity for trial lawyers in the coming years.