By: Mark Issa
January 8, 2013
Texting While Driving
Georgia Law on Texting and Driving – From a Personal Injury and Criminal Defense Perspective
Many people driving on the road today use cellular telephones. You don’t need statistics or facts or data to arrive at that observation-based conclusion.
Many people who have cellular phones with them while driving also send/receive text messages, email, or use their phones for directions or music, despite Georgia law that prohibits such active use.
It is difficult to catch someone “in-the-act” of texting while driving; however, if you try hard enough, you will find a driver in the neighboring lane is looking down at a phone. I’ve found this person is usually the person holding-up traffic, late to accelerate after a red light, or worse – colliding into other vehicles.
It’s obvious that no one is perfect and sometimes we think our information is more important than our safety. However, the best we can do is raise awareness to the Georgia laws which prohibit the creation of danger via cell-phone usage and inform as to how using a cell-phone while driving can effect you if you are involved in a motor vehicle collision, regardless of who is at-fault, or receive a citation by an officer.
In 2010, Georgia passed a law which states that, “[a] driver shall exercise due care in operating a motor vehicle on the highways of this state and shall not engage in any actions which shall distract such driver from the safe operation of such vehicle, provided that, except as prohibited by Code Sections 40-6-241.1 and 40-6-241.2, the proper use of a radio, citizens band radio, mobile telephone, or amateur or ham radio shall not be a violation of this Code section.” O.C.G.A. § 40-6-241.
That same year, Georgia also passed a law prohibits use of mobile devices for texting, e-mail, and other uses by anyone 18 years of age or older with a class C driver’s license: “No person who is 18 years of age or older or who has a Class C license shall operate a motor vehicle on any public road or highway of this state while using a wireless telecommunications device to write, send, or read any text based communication, including but not limited to a text message, instant message, e-mail, or Internet data.” O.C.G.A. § 40-6-241.2(b). This law has its exceptions; the following situations are unpunishable:
(1) A person reporting a traffic accident, medical emergency, fire, serious road hazard, or a situation in which the person reasonably believes a person’s health or safety is in immediate jeopardy;
(2) A person reporting the perpetration or potential perpetration of a crime;
(3) A public utility employee or contractor acting within the scope of his or her employment when responding to a public utility emergency;
(4) A law enforcement officer, firefighter, emergency medical services personnel, ambulance driver, or other similarly employed public safety first responder during the performance of his or her official duties; or
(5) A person engaging in wireless communication while in a motor vehicle which is lawfully parked.
The Personal Injury Perspective:
Georgia law imposes a duty on each driver to avoid distractions (see O.C.G.A. § 40-6-241); the opposite of a distracted driver is a focused driver. Moreover, a focused driver maintains a proper lookout for potential roadway hazards and acts in a reasonable and prudent manner.
If you are the victim of a motor vehicle collision, it is important to ascertain whether the at-fault driver was using a cell-phone in a manner prohibited by Georgia law. O.C.G.A. § 40-6-241 may apply even if the at-fault driver was merely talking on a cell-phone at the time of the wreck.
Although many people use their phones while driving, we do not ignore the inherent danger posed by the distraction of a conversation, texting, or merely taking one’s eyes off the road. The simple act of looking down and concentrating on the text on an iPhone, or searching for a phone number to make a call poses an extreme risk to other drivers on the road. It takes fractions of a second for matters to spiral out of control, i.e., a semi-truck blowing a tire, especially on Georgia’s highways.
In cases where our client was injured in a wreck and the at-fault driver was suspected of using a cell-phone, we have pursued punitive damages, since the growing trend views texting-while-driving as acting with disregard for the safety of the public. Although not as traditionally unacceptable as driving while intoxicated, texting-while-driving, i.e., distracted driving, poses an equally severe threat as driving while intoxicated.
To successfully prosecute an allegation of distraction-by-cell-phone in a personal injury case and support a claim for punitive damages, it is imperative to obtain the at-fault driver’s cell-phone records. This is normally done during discovery after your lawsuit has been filed. However, we have enjoyed success in obtaining cell-phone records in pre-suit investigations, allowing us to place the insurance carrier on-notice that we are seeking punitive damages.
Meanwhile, obtaining text message records poses a more difficult task. Absent a court order, mobile carriers are reluctant to comply with any request for text messages. However, mobile carriers customarily comply with requests for data usage during discovery.
The Criminal Defense Perspective:
“Any conviction for a violation of the provisions of [O.C.G.A. § 40-6-242.2] shall be a misdemeanor punishable by a fine of $150.00. The provisions of Chapter 11 of Title 17 and any other provision of law to the contrary notwithstanding, the costs of such prosecution shall not be taxed nor shall any additional penalty, fee, or surcharge to a fine for such offense be assessed against a person for conviction thereof. The court imposing such fine shall forward a record of the disposition to the Department of Driver Services. Any violation of this Code section shall constitute a separate offense.” O.C.G.A. § 40-6-242.2(d).
Essentially, texting while driving is a misdemeanor (meaning: punishable by a maximum of 1 year in jail). A plea of guilty or conviction of this offense will likely (a) add points to your license, (b) increase your auto insurance premiums, and (c) in the event you caused an accident, be admissible against you in any civil proceeding against you, arising out of the accident.
Recently, Atlanta’s “11Alive” news did a piece on the difficult task of catching drivers in-the-act of texting while driving.
Per the Gwinnett County Police Department:
“They need an undercover officer to spot the violators because most drivers hide their phones from marked patrol cars. Then they need another officer to take pictures of the distracted driving for extra evidence. Finally they need a third officer in a marked car to pull the driver over to write.”
Clearly, there is a shortage of law enforcement personnel to enforce Georgia’s anti-texting laws. While it seems like a lot of manpower to catch a simple traffic violation, it requires many officers to conduct road-blocks and safety check points to catch DUI drivers.
Georgia, specifically, Gwinnett county, has not added enough officers to enforce a law that was enacted over 2 years ago. Yet, with the growing negativity towards texting-while-driving, you should expect greater enforcement and the watchful eye of the law to grow much larger.
“…because stopping texting and driving is an important task, they’ll continue the patrols about once a month until they find a better way to catch more distracted drivers.”
Until they find a better way to catch more distracted drivers essentially foreshadows stricter enforcement of this law. Whether it’s utilizing traffic cameras at intersections, to using more undercover officers, Georgia law enforcement traffic divisions are clearly indicating that they intend on making Georgia roads safer by deterring texting while driving.
If you have been injured in a car wreck and you suspect that the driver who caused the wreck was using a cell-phone, please call 404-968-2600 for a free consultation. You may be entitled to punitive damages in addition to compensation for medical expenses and pain and suffering.
If you have been unlucky and cited for distracted driving, i.e., texting-while-driving, please call 404-968-2600 for a free consultation. Chances are, you have a court date and will be required to appear. Your failure to appear will result in a warrant for your arrest. If you plead guilty, you may accrue points on your license.