Florida's revised texting and driving statute has now been enforced for almost one year now. While statistics have not been released yet, (hopefully) a reduced number of distracted drivers on the roadway, traffic crashes and incidents involving pedestrians has also reflected a similar downturn. Entitled the "Florida Ban on Texting While Driving Ban", Florida Statute 316.305 now classifies texting while driving a "primary" traffic violation which permits police officers to initiate a traffic stop based on suspicion of texting alone.
Previously, it was characterized as a "secondary" offense which could only be investigated if the driver was observed violating a separate traffic stature such as speeding or careless driving. The statute is also sensitive to claims that by elevating suspicion of texting to a primary offense, law enforcement has been given carte blanche authority to make a pretextual traffic stop any time a cell phone is located within a vehicle. As a result, when issuing a citation, the officer must record the race of the driver for use in statistical studies.
While a police officer may now make a traffic stop if he or she observes what appears to be texting while operating a moving vehicle, the officer must obtain a search warrant to examine the driver's phone should permission not be given. Of course, cell phone records could be subpoenaed to assist in prosecution, my belief is that most police agencies will not go to this length or expense to do so. They may simply seize the phone until a search warrant can be obtained from a judge.
The statute also prohibits using a handheld telephone in a school crossing zone or a marked road work zone when workers are present. The penalties increase with subsequent violations. A first offense carries a $30.00 fine and court costs, although the offender can avoid the fine by showing proof of purchase of a Bluetooth hands free device and completing a driver's safety course. A subsequent violation authorizes a fine of between $60.00 and $100.00 plus gives the judge discretion to assess 3 points on the operator's driver's license. Being adjudicated guilty and having points assessed on one's driver's license carries the most significant consequence of the statute. Without question, auto insurance companies have performed statistical studies regarding how texting while driving increases the potential for bodily injury claims against their insured drivers.
As a personal injury attorney who has handled hundreds of auto claims, I can tell you that in any lawsuit I file on behalf of my client, the question of whether my client was texting immediately prior to the accident is one of the first questions asked by the insurance company's attorney in the discovery process. This question is usually paired with a request for my client's phone records for the period of time just before the crash. If it is determined that my client was texting or even talking on the phone at the time of the accident, I must immediately prepare for the argument that my client was guilty of comparative negligence which, if believed, can significantly reduce any recovery, whether pre-suit or at trial. Simple advice- Don't do it!
I have handled numerous cases where texting and/or speaking on a cell phone has been a significant issue. If you have been injured by a driver you believe to have been distracted by speaking or texting on their phone, please feel free to contact me for a no-cost consultation at Heyman Law Firm, P.A. at 727-822-3700 with any questions you may have.
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