Ohio Police Started Ticketing Texting Drivers on March 1, 2013: What It Means for Crash Victims

Published March 5, 2013 · New Laws

The warning period is over. Since last Friday, March 1, 2013, Ohio police officers can write tickets under the state's texting-while-driving ban instead of handing out warnings. The law itself, House Bill 99 of the 129th General Assembly, took effect on August 31, 2012, but the legislature built in a six-month grace period so drivers could learn the rules. I wrote about the law when it took effect, in Ohio Bans Texting While Driving: How the New Law Helps Crash Victims Prove Fault. Now that citations are real, it is worth looking at how they change an injury case.

What the law prohibits

For adult drivers, R.C. 4511.204 makes it illegal to use a handheld electronic wireless communications device to write, send, or read a text-based communication while driving. "Text-based communication" covers text messages, instant messages, and email. There are exceptions for emergencies, for dialing or answering a phone call, for navigation use, for receiving safety or traffic alerts, and for voice-operated or hands-free features. Talking on a handheld phone is still legal for adults in Ohio.

Three features of the adult rule matter for crash victims:

• It is a secondary offense. Under division (C) of the statute, an officer cannot stop a car solely to investigate texting. The officer needs another reason for the stop, such as speeding, weaving, or a crash, and can then add the texting charge.
• It is a minor misdemeanor, with a fine of up to $150 according to the news coverage of the law. There is no jail time and no points for a first offense.
• The law does not preempt stricter local ordinances. Some Ohio cities already have their own texting or hand-held bans that are primary offenses.

For drivers under 18, R.C. 4511.205 is much broader. A teen with a temporary permit or probationary license may not use any electronic wireless communications device in any manner while driving. That includes hands-free calls, email, apps, and games. It is a primary offense, so an officer can stop a teen driver for it alone. The penalty is a $150 fine and a 60-day license suspension for a first violation, and a $300 fine and a one-year suspension for a second.

Why a citation matters more in civil court than in traffic court

A $150 fine does not deter much. The real consequence of a texting ticket shows up when the texting driver has injured someone.

In a civil injury case, the injured person has to prove the other driver was negligent, meaning the driver failed to use reasonable care. Ohio law treats the violation of certain specific safety statutes as negligence per se: if the statute sets a clear, specific standard of conduct and the driver violated it, the jury does not have to debate whether the conduct was careless. I explained the limits of that doctrine in this 2010 post on a motorcycle verdict. The texting ban is written as a specific prohibition, and whether a court applies negligence per se or simply treats the violation as strong evidence of negligence, the result for the injured person is the same: a texting citation makes fault much harder for the insurance company to dispute.

A citation also fixes the officer's observations in a public record. The crash report will describe what the officer saw, what the driver admitted, and whether the phone was in the driver's hand. Those details are far more persuasive than a victim's later statement that "he looked like he was on his phone."

The driver will not be cited in most cases, so we go to the records

Because the adult offense is secondary and officers arriving after a crash rarely see the texting happen, most distracted drivers will never receive a ticket. That does not mean the texting cannot be proven. It means we have to prove it ourselves.

The evidence is in the carrier's records. Wireless carriers keep logs of the date and time of each text message sent and received, and often of data usage, for a limited period. Matching those timestamps against the time of the crash on the police report can show that a message was sent or received seconds before impact. In some cases the phone itself, if it is preserved, shows the message half-typed.

Carriers do not hand those records to a stranger. They are obtained through a subpoena or court order once a lawsuit is filed, and only if they still exist. Retention periods vary by carrier and are often short. That is why one of the first things our office does in a suspected distracted-driving case is send a preservation letter, sometimes called a spoliation letter, to the driver, the driver's insurer, and the wireless carrier. The letter puts them on notice that the records are evidence in a claim and must not be destroyed. If they are destroyed after notice, the court can sanction the responsible party and instruct the jury to assume the records were unfavorable.

We also look for the ordinary evidence of distraction: no skid marks before a rear-end collision, a witness who saw the driver's head down, a passenger's account, and the driver's own statements at the scene. Distracted-driving crashes tend to look alike: full-speed impacts with no evasive action. That pattern is itself evidence.

Punitive damages for texting drivers

Texting while driving is dangerous enough that, in the right case, it can support more than compensation for the injured person. Ohio permits punitive damages when a defendant acts with malice, which includes a conscious disregard for the safety of others that has a great probability of causing substantial harm. I covered that standard in Punitive Damages in Ohio: When a Defendant's Conduct Is Bad Enough. A driver who chooses to read and type messages at highway speed, in violation of a statute passed to stop exactly that, gives an injured person a serious argument that the conduct was more than careless. Whether a judge allows the claim depends on the facts, and most cases settle on the compensatory damages alone, but the threat of punitive exposure changes how an insurance company values the case.

What this means for you

If you were hit by a driver you believe was texting, the clock on the evidence is already running. Ask the officer at the scene to note any phone use in the report. Write down the exact time of the crash. Get the names of witnesses and passengers. Then call a lawyer before the carrier's retention period runs out, so a preservation letter can go out and the records can be subpoenaed when the case is filed.

Our distracted driving practice is built around this kind of investigation, and as a former police sergeant I know what is in a crash report and what the officer may have left out. If you are not sure whether distraction played a role, that is an acceptable reason to call. It is better to preserve records we do not end up needing than to need records that are gone.