Distracted Driving

Every driver on the road knows the phone is the new drunk driving. Proving it in a courtroom is another matter: nobody admits they were texting, and the evidence that shows it does not collect itself.

Where the proof lives

• The police narrative. What a driver blurts out at the scene (“I only looked down for a second”) ends up in the officer's report, and it is powerful. In our $750,000 rear-end case, the responding officer's report described the van driver looking at his GPS. That single line reframed the entire claim.
• Phone records. Carrier records can show calls and data activity in the minute of the crash. They require subpoenas and precise timing work, and a lawyer who asks for them before they age out.
• Commercial vehicle cameras. Commercial vans and trucks increasingly carry driver-facing cameras. When one was involved in a serious crash, a preservation demand must go out before the footage is overwritten.
• The hands-free laws. D.C., Maryland, and Virginia all ban handheld phone use while driving. A violation supports the negligence case against the driver who hit you, and helps answer any contributory-negligence attack on you.

Why it changes case value

A jury forgives a mistake. It does not forgive a choice. When the evidence shows the driver chose the screen over the road, the settlement conversation changes, and in egregious cases the door opens to punitive damages arguments that ordinary negligence never reaches.

Hand-held phone laws in D.C., Maryland, and Virginia

All three jurisdictions prohibit hand-held phone use while driving, but the statutes are written differently, and the differences matter when we prove what the other driver was doing.

• D.C. No one may use a mobile phone or other personal wireless device without a hands-free accessory while driving, or hold one, except in an emergency, to start or end a call, or when safely stopped off the roadway (D.C. Code § 50-1731.04). D.C. separately prohibits “distracted driving,” defined to include inattention caused by reading, writing, grooming, pets, or other distractions that results in unsafe driving (D.C. Code §§ 50-1731.03, 50-1731.02(1)). That broader rule reaches distractions that have nothing to do with a phone.
• Maryland. The driver of a moving vehicle may not use his or her hands to use a handheld telephone, other than to start or end a call or turn the phone on or off (Md. Code, Transp. § 21-1124.2(d)(2)). A separate law bars writing, sending, or reading a text or electronic message while driving in the travel portion of the roadway (Md. Code, Transp. § 21-1124.1(b)).
• Virginia. It is unlawful to hold a handheld personal communications device while driving a moving motor vehicle on Virginia highways (Va. Code § 46.2-818.2(A)). Virginia's rule turns on holding the device at all, which makes a witness who saw a phone in the driver's hand especially valuable. The fine is $125 for a first offense and $250 for a second or later offense (§ 46.2-818.2(C), (D)).

How a traffic violation is used at trial is not the same in every court, so we plan the proof around the jurisdiction from the start. Filing deadlines also differ: two years in Virginia (Va. Code § 8.01-243(A)), three years in D.C. and Maryland. For state-specific rules, see Maryland car accident claims and Virginia car accident claims. If a commercial driver was involved, see truck crashes and rideshare crashes.

Related reading

• Virginia's hand-held phone ban and what it means for crash claims
• Texting and driving in Maryland: Jake's Law and the handheld ban
• Punitive damages in Virginia: the $350,000 cap
• Punitive damages in D.C.: the clear and convincing standard
• Contributory negligence in D.C., Maryland, and Virginia
• DMV Injury Guide: gathering evidence while it still exists
• DMV Injury Guide: preserving documents and records

Responsible attorneys: Ryan C. Posey and Jacob M. Lebowitz. Posey Lebowitz PLLC, 3221 M Street NW, Washington, DC 20007.