Using Distracted Driving Evidence To Build Your Personal Injury Case

by The Roth Firm

The Roth Firm

When you take every precaution necessary to make sure you are focused on driving to keep you, and your family, safe, it can be terrifying to think that other drivers your sharing the road with are not quite as aware.

When you see other vehicles swerving, changing lanes without a turn signal, and constantly on their phone, it is easy to understand why some drivers are so stressed.

According to the National Center for Statistics and Analysis reports, each day approximately 9 people are killed and more than 1,000 injured in automobile crashes that are reported to involve a distracted driver.

Given these alarming statics, most individuals agree with the following statements:

But what exactly is "distracted driving?" What are the types of distractions that will lead to an automobile collision? What does evidence of distracted mean for your particular injury case?

Breaking Down Distracted Driving

Distracted driving refers to any nondriving, activity that takes or forces the driver’s attention away from the safe operation of his or her vehicle. 

Distractions range from the following:

  • Eating/drinking
  • Smoking a cigarette
  • Conversing with passengers
  • Applying make-up
  • Shaving
  • Daydreaming/losing focus
  • Using electronic devices (car stereo/cell phone)
  • Driving while intoxicated

From the myriad of examples, the National Highway Traffic Safety Administration (“NHTSA”) identifies three (3) main categories of driving distractions:

  1. Visual: Drivers taking their eyes off the road
  2. Manual: Drivers taking their hands off the wheel
  3. Cognitive: Drivers taking their mind off of the road and the safe operation of the vehicle

While we will briefly discuss simple distractions, our discussion will primarily focus on the extreme examples of distracted driving—cell phones and intoxication/impaired driving distractions—which an auto-accident lawyer can use in connection with your personal injury case

Simple Distractions

While any automobile collision is an “accident,” most if not all “accidents” are the result of the at-fault driver's failure to act or react under the circumstances. 

In the simplest sense, what this means is that by failing to scan the roadway ahead or look to the left/right, the at-fault driver’s distraction caused the collision.  And in most cases involving simple distractions, the at-fault driver and the at-fault driver’s insurance company will acknowledge these mistakes and admit fault for the collision.  Because of this, these simple distractions become a non-issue and the focus shifts to the nature of the collision and the injuries sustained directly and proximately because of the collision. 

This shift, however, is not the case with extreme examples of distractions.

Extreme Distractions

Cell Phone Distractions

Over the past decade, cell phones and other mobile devices have transformed society.  We are more connected than ever.  This growing connectivity, however, comes at a price. 

Most if not everyone who owns a cell-phone and operates a vehicle has been guilty at one point of sending a “quick” text, making a “quick” call, responding to a “quick” email and the like. 

But to complete any of these “quick” tasks, the driver becomes distracted.  The cell phone distraction results in the driver becoming visually, manually and cognitively distracted.  Specifically, in order to use the phone, for the most part, the driver’s eyes are taken off of the road.  Then, to use the phone, the driver’s hands, at least one, will be taken off of the steering wheel.  And finally, while all of these physical movements are taking place, the driver’s mind is focused on the cell phone use as opposed to the roadway.   

Unfortunately, the law in Georgia is unsettled regarding the single use of a cell phone resulting in a distraction that causes the collision.

But that does not mean this evidence is not powerful or important to your case.  There should not be any prohibition by your personal injury trial lawyer from presenting evidence of the at-fault driver’s cell phone usage as related to your collision, especially considering that research shows:

  • Texting while driving has the highest crash risk of all forms of distraction as the odds of being involved in a safety-critical event (for example crashes, near-crashes, crash-relevant conflicts, and unintentional lane deviations) are 23 times greater than for those who do not.
  • Drivers who use cell phones are four times more likely to get into crashes which result in injuries
  • Researchers at the University of Utah used a driving simulator to compare the effects of merely speaking on a cell phone to those who were legally intoxicated. They concluded that “when controlling for driving difficulty and time on task, cell-phone drivers exhibited greater impairment than intoxicated drivers.”

But how does your personal injury trial lawyer obtain and then use this evidence of cell phone distractions?

To obtain, and then use, any evidence of the at-fault driver’s cell phone distractions, we must first know that the violation occurred and was a contributing factor to the collision. This all starts at the collision scene. 

To the extent you are able, speaking with the at-fault driver and asking “what happened?” provides the starting point.  From there, advising the responding police officer of the at-fault driver’s admission to using his or her cell phone in any manner will then help to document the at-fault driver’s violation. 

Unfortunately, the innocent victim will not be able to search the at-fault driver’s cell phone at the collision scene.  But with the information that the at-fault driver was distracted by his or cell phone, your attorney will later be able to obtain the at-fault driver’s cell phone records. 

Records include:

  • Call logs
  • Text messages
  • Data usage on the day of the collision with time-stamps

Once this evidence is obtained, your personal injury trial attorney will then be able to question the at-fault driver about his or her cell phone usage as related to the cause of the collision.  This evidence will also be presented to the insurance company and ultimately the jury to help establish the unsafe distractions by the at-fault driver. 

Intoxication/Impaired Driving

As compared to cell phone distractions, which as noted above may, in fact, be as dangerous, intoxicated/impaired driving is generally “easier” to identify. 

This is largely in part because when an at-fault driver is intoxicated or impaired, the responding police officer or law enforcement individual will conduct an investigation at the collision scene. If the at-fault driver is found to be intoxicated or impaired, the responding officer will detain or arrest the at-fault driver for these violations.  

Unlike cell phone evidence, the investigator officer’s arrest or investigation report will help provide the majority of the evidence needed.  These reports will include the following:

  • A written account of the officer's observations at the scene
  • Any audio or video recordings of the at-fault driver's interactions with the officers
  • Level of intoxication or impairment of the at-fault driver (the BAC or blood test results)

And unlike cell phone distractions, the law in Georgia is mostly settled on the fact that evidence of the at-fault driver’s intoxication/impairment allows for additional damages known as punitive damages. Punitive damages are damages which are designed to punish and deter conduct which society regards as reckless, malicious and blameworthy.

Because of the ability to access an additional class of damages available to an injury victim, your Personal Injury Attorney will not only use the officer’s investigation material but will also conduct his or her own investigation into the at-fault driver’s history for intoxicated/impaired driving events.

Generally, the more times an at-fault driver has caused a collision due to being intoxicated/impaired, the more equipped your personal injury trial attorney will be to combat the insurance company. 

But as with cell phone distraction accidents, knowing that the intoxicated/impaired driving distractions occurred is paramount. 

So it is important that injury victims report these violations to the proper authorities in order to document the intoxicated/impaired driving distractions

Another option is to take audio/video recordings of the intoxicated/impaired drivers actions at the collision scene or document any observations with photographs.

The most important thing for an injury victim to remember is that the evidence of distracted driving starts with them at the collision scene

To the extent available, it is important to let the investigating police officer or law enforcement personnel know that the at-fault driver was distracted.

From there, retaining legal representation to further conduct the necessary investigation to obtain the evidence of distraction is a must.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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