Ohio Bans Texting While Driving: How the New Law Helps Crash Victims Prove Fault

Published August 31, 2012 · New Laws

As of today, August 31, 2012, it is against the law to text while driving anywhere in Ohio. House Bill 99, signed by Governor Kasich on June 1, creates two new sections of the Revised Code: R.C. 4511.204, which bans texting by all drivers, and R.C. 4511.205, which goes further and bans drivers under 18 from using a handheld electronic device at all. For people hurt by distracted drivers, the new law matters in ways that go beyond the traffic ticket.

What the new law prohibits

For every driver (R.C. 4511.204). No one may operate a motor vehicle on a public street, highway, or property open to public traffic while using a handheld electronic wireless communications device to write, send, or read a text-based communication. The statute defines "text-based communication" to include text messages, instant messages, and e-mail, and the covered devices include wireless phones, text-messaging devices, personal digital assistants, and laptop or tablet computers.

The adult ban has several exceptions. It does not apply to:

• contacting police, fire, a hospital, or another emergency agency in an emergency;
• public-safety vehicle operators acting in the course of their duties;
• a driver whose vehicle is stopped and outside a lane of travel;
• reading, selecting, or entering a name or number to make or receive a phone call;
• receiving messages about vehicle operation, navigation, or safety alerts, or using the device for navigation;
• using a voice-operated or hands-free feature that does not require manually entering or reading text, except to turn the feature on or off;
• commercial truck drivers using a mobile data terminal.

A violation is a minor misdemeanor, the lowest level of offense in Ohio, which carries a fine of up to $150. It is a secondary offense for adults: an officer cannot stop a car solely to check for texting, and cannot cite a driver for texting unless the driver was stopped for some other reason, such as speeding or running a light.

For drivers under 18 (R.C. 4511.205). The rules for young drivers are much stricter. A holder of a temporary instruction permit who is under 18, or of a probationary driver's license, may not drive while using an electronic wireless communications device in any manner. That means no texting, no handheld phone calls, no apps. The only exceptions are emergencies, a vehicle stopped outside a lane of travel, and hands-free navigation. For teens the offense is a primary one, so an officer can stop the car for the violation alone. A first offense brings a $150 fine and a 60-day license suspension; a later offense brings a $300 fine and a one-year suspension.

The warning period. The law includes a six-month warning period. Until the end of February 2013, officers may stop drivers and issue warnings, but not tickets. After that, enforcement begins in earnest.

Why a traffic law matters to an injury claim

Criminal penalties are the General Assembly's business. Our business is what the law means for the person a texting driver hits, and there the new statute helps in three ways.

It makes texting a recognized safety violation. Before today, a texting driver who caused a collision could still be held liable for negligence, but the argument had to be built from the general duty to keep a proper lookout and maintain control. Now Ohio has a specific statute that says texting behind the wheel is prohibited conduct. A driver who caused a crash while violating it has a harder time telling a jury that reading a message at 45 miles per hour was reasonable.

It may support negligence per se. "Negligence per se" is the rule that when a statute sets out a specific, positive requirement for public safety, violating it is negligence in itself, without the jury having to decide whether a careful person would have done the same thing. Not every rule qualifies, as we explained in Negligence Per Se in Ohio: Why Not Every Rule Violation Automatically Wins the Case. Whether courts will treat the texting ban as the kind of specific safety statute that supports negligence per se is a question that will be worked out in the cases to come. At minimum, a violation is strong evidence of carelessness, and the injured person still must prove that the texting caused the crash and the injuries.

It changes the comparative-fault math. Ohio reduces an injured person's recovery by his or her own share of fault and bars recovery if that share exceeds 50 percent, as we discussed in Partly at Fault? How Ohio's Comparative Negligence Rule Works. When one driver was texting in violation of a state statute, jurors tend to assign the lion's share of fault to that driver, and the insurer knows it.

Proving the other driver was texting

A statute is only useful if you can prove it was violated, and no texting driver volunteers that information to a police officer or an adjuster. The proof usually comes from:

• Phone records. Carrier records show the exact time of each text sent and received. In a lawsuit we can subpoena them, and we send a preservation letter early so they are not lost to routine retention policies. Matching a 2:14:37 p.m. outgoing message to a 2:14 p.m. crash is powerful evidence.
• The crash report and the officer's observations. With the new law on the books, officers investigating a crash have a reason to ask about phone use and to note a phone in the driver's hand or lap.
• Witnesses. Other drivers and passengers frequently see a driver's head down or a glowing screen just before impact.
• Physical evidence. No skid marks before a rear-end collision on dry pavement tells its own story: the driver never saw the stopped car.
• The phone itself. In serious cases the device can be preserved and examined.

The sooner a lawyer is involved, the better the chance this evidence still exists. Phone carriers do not keep detailed records forever, and a driver who deletes messages after a crash has, at best, made the evidence harder to get.

What this means for you

• Texting while driving is now illegal for every Ohio driver, and all handheld device use is illegal for drivers under 18.
• The warning period ends in six months; the civil consequences start today. A driver who violates the statute and causes a crash faces a strong negligence case.
• If you suspect the driver who hit you was on a phone, say so to the officer at the scene, note any witnesses, and call a lawyer quickly so phone records can be preserved.
• Even with the new law, you must still prove that the texting caused the collision. Documentation wins that argument.

Our page on distracted driving accidents in Dayton explains how these cases are investigated, and our car accident overview covers the claim process from the first call to settlement or trial.