Ways to Prove a Driver Was Distracted

September 22, 2017 | Attorney, Matthew Dolman
Ways to Prove a Driver Was Distracted

Did you know that according to the Center for Disease Control's Injury Center, distracted driving causes nearly one in five motor vehicle crashes? Sadly, the Florida Department of Highway Safety and Motor Vehicles reports that approximately 200 Floridians are killed, 3,000 suffer incapacitating injuries, and 10,600 to 32,000 suffer from personal injuries as the result of “distracted driving.” But if you were injured in an accident, how do you prove that the driver was distracted as opposed to driving aggressively or perhaps even falling ill? For this, it is essential to enlist the services of an experienced car accident attorney and their team of investigators.

Distracted Driving Defined

Car accidents seldom result from only one negligent act or driver. A driver can be distracted, driving aggressively, or have mechanical issues, all of which can contribute to an accident. In Florida, however, there is actually a difference between “distracted driving” and “aggressive driving.” Distracted driving is defined as a crash that occurs because a driver was doing one or more of the following:

  • Using an electronic communication device
  • Using another electronic device
  • Texting
  • Talking to passengers
  • Eating or drinking
  • Reading
  • Grooming
  • Adjusting the radio
  • Becoming distracted by external factors, such as witnessing an accident
  • Daydreaming
  • In Florida, “aggressive careless driving” is legally defined as committing two or more of the following acts simultaneously:
  • Exceeding the speed limit
  • Improper or unsafe lane changes
  • Following too closely
  • Failure to yield
  • Improper passing
  • Violating traffic control devices and signs

Aggressive driving is actually easier to prove than distracted driving sometimes, as video footage or eyewitness accounts of a driver surpassing the speed limit or weaving between lanes can establish aggression. Further, if a driver was traveling well over the speed limit, an expert witness can often calculate the speed of the vehicle based on the damage sustained to the cars and skid marks. Distracted driving is harder to prove. If you are rear-ended, for example, how do you know whether it was because the other driver was texting or she was speeding and couldn't stop in time?

Expert Witness Testimony

As in all states, Florida permits an “expert” in his or her field of study to provide opinion testimony to the court. Under Florida law, “if scientific, technical, or other specialized knowledge will assist the trier of fact [jury or judge] in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion.” Accordingly, someone who is certified as an expert witness (meaning all parties have agreed that the witness has the requisite education, experience, and knowledge in the field) can look at the evidence and testify that it is his or her opinion that the accident was caused because the driver was texting.

This does not mean, however, that the other party cannot also produce an expert to counter your expert's testimony. For example, the defendant's expert may claim that the methods relied on to determine whether the defendant was texting were not generally accepted in the field and as such, the judge should not consider the testimony. Although expert testimony can go a long way in proving a driver was distracted, it is very expensive and attorneys seldom rely on expert testimony unless the injuries were severe and the remaining evidence is not sufficient to prove a distraction.

Gathering Evidence After a Car Accident

One of the most effective ways to prove a driver was distracted is to simply gather evidence at the scene. Especially after a serious accident, not every driver is thinking about gathering evidence, but there is little evidence more reliable than that immediately obtained after the accident. Taking pictures and videos of the scene, including any tire marks and even pictures of the inside of the other driver's car, can help prove a distraction. For example, if you notice the other driver's cell phone on the seat or an open fast food container, it may be evidence that the driver's hands were not on the wheel and mind not on the road.

Further, if you call the police after the accident, the responding officers will typically ask for each driver's description of what happened and include that in the police report. Often, the negligent driver will tell the police officer the truth, such as how he was distracted by an accident that occurred on the other side of the highway or spilled his drink on his lap. This police report can later be introduced as evidence of distraction. If this testimony or additional eyewitness testimony as to the behavior of the driver is not available, your attorney may be able to request the driver's cell phone records at the time of the accident as well as any traffic and private video footage of the driver that may show the cause of the car crash. It is important to do this quickly, however, as non-parties to the accident, such as a local business with CCTV footage of the driver, are not required to preserve the video that could prove your case. Your Clearwater personal injury attorney, however, can send out a letter requesting that all evidence be preserved.

Contact a Clearwater Distracted Driving Attorney Today

Car accidents and personal injuries caused by distracted driving are common, whether you are riding a motorcycle, bike, or driving a truck, they affect everyone on the road. Sometimes drivers are so used to driving while distracted they don't even realize this was the cause of the accident. Whether they were eating, using their phone, looking for a parking spot, or gazing at their children in the back seat, this all qualifies as distracted driving and can result in serious personal injuries. If you or a loved one was injured in an accident that you believe is the result of distracted driving, the Dolman Law Group has the personal injury lawyers you need in the greater Clearwater area. Call them today at 727-451-6900 for a free, no-risk consultation about your car accident or contact them online.

Dolman Law Group Accident Injury Lawyers, PA 800 North Belcher Road Clearwater, FL 33765 (727) 451-6900 https://www.dolmanlaw.com/car-accident-lawyer/distracted-driving/


Matthew Dolman

Personal Injury Lawyer

This article was written and reviewed by Matthew Dolman. Matt has been a practicing civil trial, personal injury, products liability, and mass tort lawyer since 2004. He has successfully fought for more than 11,000 injured clients and acted as lead counsel in more than 1,000 lawsuits. Always on the cutting edge of personal injury law, Matt is actively engaged in complex legal matters, including Suboxone, AFFF, and Ozempic lawsuits.  Matt is a lifetime member of the Million Dollar Advocates Forum and Multi-Million Dollar Advocates Forum for resolving individual cases in excess of $1 million and $2 million, respectively. He has also been selected by his colleagues as a Florida Superlawyer and as a member of Florida’s Legal Elite on multiple occasions. Further, Matt has been quoted in the media numerous times and is a sought-after speaker on a variety of legal issues and topics.

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