Distracted Driving: The Law, The Facts and The Practice by Kevin B. Apter, Lipkin & Higgins

Distracted Driving: The Law, The Facts and The Practice

"Honk if you love Jesus, text if you want to meet Him."

Such is the cleverly crafted bumper sticker I stumbled upon one recent night on my way out of the United Center parking lot.

Few topics grab headlines more frequently, even in an election year, than distracted driving. Many of us likely think of distracted driving as texting, emailing or simply operating a handheld cell phone while driving our car or truck. Several other forms of distracted driving exist, however, including surfing the web, eating, applying makeup or adjusting a music playlist. The National Highway Transportation Safety Administration defines distracted driving as "driving while engaged in any activity that could distract a person's attention away from the primary task of driving."1

Obviously, partaking in activities while driving such as using a handheld cell phone, eating, adjusting a playlist, setting a navigation system or a litany of others, not just texting, emailing or surfing the internet, fall within this broad definition. Is it practical to expect that every driver can operate their car without engaging in any of the aforementioned activities? Pardon the pun, but does this definition not open up avenues to pursue in disputed or denied cases?

I. The Facts

Despite what you and many of our legislators might think, driving while simply speaking on a cell phone in hands-free mode offers no safety benefit versus talking on a handheld cell phone.2 The simple fact of the matter is that cognitively the driver's mind is on the conversation during the call and only on the roadway (possibly) during a pause or break in conversation. Even more distracting are the voice-to-text technologies, such as Siri, because the driver is not only cognitively distracted while dictating their message, but most assuredly looking down at their dictation in order to read to confirm that what they are about to send is an accurate recitation of their message, a "double-distraction" if you will. Such is a recipe for disaster.3

Multiple studies show that simply talking on a cell phone in any manner while driving creates a risk equal to that of driving with a blood alcohol content of .08. In other words, a driver on a cell phone wireless call is, in effect, a drunk driver in most states, including Illinois.4 A drunk driver with a blood alcohol content of .08 is four times more likely to crash their car than the average driver, and the distracted driver is no different.5

The major gambler, and killer, is the driving texter. The average text message takes 4.6-5 seconds to send.6 When driving a vehicle fifty-five miles per hour and sending only a smaller-sized text message, such as "kk" or "lol", the vehicle operator has traveled the distance of a football field essentially blindfolded.7 Quite simply, texting and driving makes crashing a vehicle twenty-three times more likely, or nearly six times more than while simply driving while intoxicated.8

Staggeringly, texting and driving causes approximately 1.6 million accidents, 424,000 injuries, 3,154 (11 teen) deaths and nearly 25 percent of all car accidents annually (at least in 2014, and the numbers have been generally static).9 Texting and driving slows brake reaction speed by up to 18 percent and reduces the focus of the driver on the road by 25 percent.10 At any given time, 800,000 people are texting and driving in the United States.11 These numbers are likely much higher, as admissions by the distracted driver or witness testimony via follow-up investigation and/or subpoena are likely necessary in order to more accurately calculate the actual statistics.

Fifty-eight percent of all crashes involving teenage drivers can be attributed to some form of distraction or driver inattention.12 Ten percent of all teenage drivers involved in fatal crashes are reported as distracted.13 Interestingly, however, 45 percent of 25-39 year-olds text while driving, a slightly larger number than the 42 percent of the 19-24 year old age group, and significantly higher than the 15-19 year old (31 percent) and 40- 59 year old (2 percent) age groups.14 Perhaps comfort level with driving in general is primarily responsible for these deviations.

Regardless of age, many drivers believe they can simply check for or send out a quick message while stopped at a red light, stop sign or in traffic. After stopping the car, however, the driver's brain takes up to eighteen seconds to regain its normal perception and reaction time.15 During eighteen seconds, even your lowest performance vehicle, or heaviest commercial vehicle, has accelerated from zero to a high speed and traveled past multiple other vehicles, pedestrians, animals and driveways and likely through intersections and traffic control devices, yet science says your brain is not yet able to focus completely on the roadway.

Every month United States cellular users transmit an average of 169.3 billion text messages.16 One in five drivers of all ages confess to surfing the web while driving.17 Eighty percent of drivers of all ages, from 15-80, own smart phones.18 What do these numbers mean? They mean there is a strong chance your tortfeasor and/or your client was driving distracted at the time of their crash.

Eighty percent of drivers mistakenly believe their hands-free devices are safer than using their phones in hand-held mode. More than half of drivers believe that the hands-free features built into their devices and automobiles must be safe because they are, in fact, built into them.19 They are not necessarily correct.

Three distinct, but connected, types of distractions exist; manual, visual and cognitive. A manual distraction is simply taking one or both of your hands off of the wheel in order to partake in another activity, i.e. texting, hand-held cell phone calling, adjusting the radio station. A visual distraction occurs when the driver looks away, for instance at their cell phone to read an email, to scroll through a playlist until they find the music they want to hear or to gape at a roadside arrest or emergency-and takes their eyes off the road. A cognitive distraction happens when the driver's mind wanders away from their driving, for example, pondering the last text the driver received and the next one they are about to send. Cognitive distractions very often intersect and involve other types of distractions as well, making them especially dangerous and precarious for all in the vicinity of the vehicle.

II. The Law

Section 12-610.2 (625 ILCS 5/12- 610.2) of the Illinois Motor Vehicle Code prohibits, with special and logical exceptions, usage of Electronic Communication Devices ("ECDs") while driving. ECDs include cell phones, PDAs and portable computers, but exclude navigation systems that have been integrated into the vehicle. Also excluded generally from §12- 610.2 are law enforcement officers and emergency vehicle operators using their ECDs while in an official capacity.20 Interestingly, at present at least, the first violation of this statute is not a moving violation in the eyes of the Secretary of State's office.21 However, if use of an ECD is determined to be the proximate cause of an injury to another short of death, the violator maybe charged with a Class A misdemeanor.22 If death results to the victim, the violator may be charged with committing a Class 4 felony.23 The "aggravation" upgrade applies in cases of injury or death unless the subject cell phone call was made because of an emergency.

Drivers under the age of nineteen, including those driving with a Learner's Permit (so-called "Novice Drivers"), are prohibited from using cell phones, either in hands-on or hands-free mode, entirely while driving.24

Regardless of his or her age, no person may use a cell phone for any purpose while operating a vehicle in a school zone, a highway construction site or zone or within 500 feet of an emergency scene unless already engaged in the call.25 The "aggravation" upgrade applies in cases of injury or death unless the subject cell phone call was made because of an emergency itself.26 The cell phone user may single-push a button ending a call in these zones, however. Emergency or maintenance personnel are exempt. Generally, $375.00 minimum fines apply for violations.

Illinois presently has no implied consent, or "textalyzer" laws, such as bills presently being debated in New York and Michigan. In those states, upon reasonable belief of proximate cause, the laws would allow a police officer to search a vehicle operator's phone for usage, but not content, following a crash. As most drivers in Illinois know, when you are issued your Illinois driver's license you impliedly consent to certain sobriety tests if an investigating officer stops you and has a reasonable suspicion of intoxication. If you refuse to consent to testing, your driver's license is summarily suspended for twice as long as if you consented to testing and failed (in the case of the first offender). New York bill 56325A, for example, would allow police to use an electronic scanning device to conduct roadside inspections of vehicles involved in collisions using the implied consent theory as a permissive device. In Illinois, on the other hand, a warrant (or subpoena) is presently required,27 pursuant to Riley v. California,28 a natural and modern progression of the famous Terry v. Ohio,29 and Chimel v. California,30 search and seizure decisions, to gain access to any of the contents of the ECD/cell phone during a traffic stop.

III. The Practice

Because most cell phones themselves can be superficially and quickly wiped clean in a brief moment by all but the most seriously injured vehicle operator, what can be done to retrieve phone or data usage in your case?

Ask your opponent for their client's cell phone number and their cellular carrier's identity in the initial written interrogatories. Most cellular service providers may take sixty or more days to provide you with the dates and times of phone call, text and data usage via subpoena or formal request. You may also wish to get it online from your own client to get ahead of a possible problem. You will not receive the word-for-word transcript of the phone call(s), of course, but you will receive important information identifying the length of each call, to what number a call was placed or from which number it was received and the approximate location of the call(s). You may be able to acquire data usage telling you that your driver was surfing the Internet or emailing from his phone at or around the time the Traffic Crash Report states that the driver was supposed to have been operating their vehicle. Such information can be devastating to the credibility of a witness and/or other vehicle operator, as computers rarely lie. We know, however, that people on the proverbial hot seat occasionally "misremember" details when faced with uncomfortable questions.

If necessary, a neurologist or other expert can explain what happens within the brain during the time that passes between a red light traffic stop, for instance, the driver's sending of a text message and the crash that occurred several seconds later if the defendant claims they were not texting at the actual moment of impact. Perhaps an expert in human factors or an ophthalmologist can explain and discuss reaction time or eye movement in the right case and how the client's field of vision was substantially reduced prior to the crash if they looked away to read or send a text message and then looked up or forwarded moments before impact.

Most recently, the Snapchat suit was filed by a plaintiff against the Snapchat application manufacturers alleging that the Snapchat cell phone application has a "filter" that measures the driver's speed so that they can then take a picture of themself with a GPS-aided speedometer printed on the photo to post and transmit to friends for "bragging rights." Following a series of serious 100+ mile per hour crashes, injured plaintiffs have sued in Georgia. A verdict awaits.

SIDEBAR: Respondeat superior

Cell phones originally gained popularity in the late 1980's when called "car phones" and mounted into vehicles. The first users of car phones saw the opportunity to use their commuting and driving time as work time. As with virtually all technology, advancements led these phones to become more powerful, smaller (therefore more mobile) and versatile.

Many employers rely on cellular communications to perform their business functions, but doing so may put employers at a significant liability risk. Have they encouraged the dangerous behavior among their employees? An employer may be negligent directly if it encourages its employees to use its cell phones or his or her own cell phones for business, especially without proper training. Their insurance carriers may have advised them in this regard.31 Could any Human Resource Manager or Safety Manager with a hint of credibility in the eyes of the jury really testify they are unaware of the dangers associated with distracted driving when they concede that they do not have in place (while many other companies do) a ban, or at least some policy on cellular use while driving? The NTSB recommended a ban in December of 2011, on the use of all portable electronic devices while driving.32 Two months earlier, the NTSB called for an identical ban for commercial vehicles.33 If the employee is acting within the scope of his or her employment at the time of the crash, the employer may be liable under the basic theory of vicarious liability. "Acting within the scope," when it comes to a hot-button topic like distracted driving in a serious injury case, has blurred even further the lines of respondeat superior. If the employer does not have a "total ban" policy, their position of encouraging safe business practice for their employees is far less defensible.

As road fatalities and serious injuries increase, so does pressure on legislators to intensify the seriousness of penalties and on police for enforcement. Many, if not most, distracted driving crashes come without major negligence battles on the civil side, however, perhaps surprisingly; carriers do fight some distracted driving allegations against their insureds. Investigating our own client's cell phone usage at the time of the crash is easy: just ask for it. It is right there in their online account: dates, times, call durations, data usage amounts, etc. Investigating your opponent's is not difficult either. All you need is the phone number, carrier and a subpoena or 214 Request.

Imagine the power of a closing argument, "Ladies and gentlemen: Defendant X drove the length of a football field at 55 miles per hour before striking and seriously injuring my client. Defendant was texting, ignoring the road, and for all intents and purposes drove that football field blindfolded and hit my client. And my client was standing there on the goal line. Was it worth the six points?"

- Published by the Illinois Trial Lawyers Association


Kevin B. Apter is a partner at the law firm of Lipkin & Higgins where he concentrates his practice on automobile, premises liability, FELA and Workers' Compensation. Kevin has negotiated or tried personal injury and Workers' Compensation cases or claims yielding in excess of $50 million during his career. Kevin volunteers for the Casey Feldman Foundation (www.CaseyFeldmanFoundation.org) and Enddd.org teaching about the dangers associated with distracted driving in area high schools, including at his alma mater, Highland Park, where its program has become part of the Traffic Safety curriculum.



1 Distraction.gov (NHTSA).
2 National Safety Council White Paper, 2010 "Understanding the Distracted Brain."
3 Texas A & M Transportation Institute, April 2013.
4 Drews & Stayer 2003. "Fatal Distraction? Comparison of the Cell Phone Driver and The Drunk Driver."
5 Distraction.gov.
6 Id.
7 Id.
8 US.textinganddrivingsafety.com.
9 Id.
10 Id.
11 Id.
12 AAA Foundation for Safety, October 2015, Carney, C., et al.
13 www.nrd.NHTSA.dot.gov/pubs/812132.pdf.
14 AAA Foundation for Traffic Safety, 2013.
15 https.www.aaafoundation.org/sites/default/strayer111a_FINAL REPORT.
16 CTIA.
17 See 8, above.
18 Distraction.gov.
19 National Safety Council, May 2015: Employer liability and the case for comprehensive cell phone policies.
20 625 ILCS 5/12-610.2(d)(1).
21 625 ILCS 5/12-610.2(c).
22 625 ILCS 5/12-610.2(e).
23 Id.
24 625 ILCS 5/12-610.1(b).
25 625 ILCS 5/12-610.1(b-5), 1(c).
26 625 ILCS 5/12-610.1(e)
27 People v. Butler, 2015 Ill.App 1st- 131870 (2015).
28 573 US _______, 2014.
29 392 US.1 (1968).
30 395 US.752 (1969).
31 http://hpd.zurichna.com/whitepaper/zurich-distracted-driving.pdf.
32 NTSB (December 13, 2011 no call, no text, no update behind the wheel: NTSB calls for nationwide ban on PEDs while driving) www.ntsb.gov/news/2011/11/213.html.
33 Id.