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Man with one hand on the wheel, texting with the other


Mark A. Cornelius Feb. 9, 2021

A 2018 report by the Florida Department of Highway Safety and Motor Vehicles (FLHSMV) pegged distracted driving as the cause for 50,285 accidents in the state. In fact, that statistic placed Florida as the second-worst state for distracted driving incidents behind only Louisiana.

Distracted driving involves several causes, but the use of cellphones and handheld devices was deemed a major one, leading to new laws in 2019 prohibiting texting or manual operation of such devices while driving in Florida.

The use of these devices, especially cell phones, is a nationwide problem. EverQuote, an online insurance company, developed an app called EverDrive that senses motion. From the data collected from the app, the company found that 92% of U.S. drivers use their phones while driving.

If you’ve been injured in an accident in which you suspect the other driver was distracted by texting, what are your rights for pursuing compensation? Contact me at the Law Office of Mark A. Cornelius, P.A. I have been helping clients with personal injury cases for more than 26 years.

I represent clients in Altamonte Springs, Florida, and in the surrounding communities of Central Florida including Seminole, Orange, Osceola, Volusia, Polk, and Lake Counties. A significant portion of my clients are hit sitting at a stoplight, stop sign, or simply stopped in traffic by someone not looking ahead.

Florida’s Anti-Texting Laws

The Wireless Communications While Driving Law, Section 316.305, Florida Statutes, took effect on July 1, 2019. The statute states: “A person may not operate a motor vehicle while manually typing or entering multiple letters, numbers, symbols, or other characters into a wireless communications device, or while sending or reading data on such a device for the purpose of nonvoice interpersonal communication.”

The law specifically bans texting, emailing, and instant messaging and lists cell phones, laptops, tablets, gaming devices, navigation instruments, and other similar devices as falling into the category of wireless communication devices.

The statute exempts emergency vehicles — police, fire, and medical — from the prohibition and also notes that the law does not apply to any vehicle that is “stationary.”

The penalty for a first offense is a non-moving traffic violation and a $30 fine. A second or subsequent offense within five years warrants a moving violation costing the driver three points on their driving record along with a fine of $60.

Section 316.306, which took effect on October 1, 2019, banned the use of handheld devices in designated school crossings, school zones, and active work zones. The penalty is a moving violation worth three points on one’s driver’s license along with a $60 fine.

Police Responsibility and Your Rights

Before the statutes took effect, police could not pull over a vehicle simply because they saw the driver texting while driving, but now they can. The driver does, however, retain certain rights.

The police must inform pulled-over drivers that they have the right to decline a search of their wireless communications device without a warrant. Additionally, the officer cannot access or confiscate the device without a warrant. As the statute states: “Consent to search a motor vehicle operator’s wireless communications device must be voluntary and unequivocal.”

Also, only in the event of a crash resulting in injury or death can the billing records for the driver’s wireless communication device be accessed. Similarly, unless an injury or death occurs, testimony or written statements from people involved in the messaging cannot be obtained for evidence.

What to Do If You Were
Hit by a Texting Driver

Florida’s no-fault law requires each driver to carry a Personal Injury Protection (PIP) rider of at least $10,000 on their auto insurance. If you’re injured in an accident, this is the first source for recovery of medical expenses and lost wages. You can seek recompense from the other driver for expenses not covered by PIP, and personal injury if you can prove them to be at fault. If your injuries can be defined as “permanent” under Florida law, you may also be able to sue for pain and suffering.

If you suspect the other driver of having been distracted by texting, how do you prove it? If the other driver admits to texting, that clears the hurdle easily and effectively. Otherwise, you may have to rely on witnesses or any photos you or someone took of them while driving and texting. There is also the possibility, when an injury is involved, of accessing their billing records for the date and time of their communications.

Hire an Experienced Florida Personal Injury Attorney

The insurance companies for both parties are going to try to low-ball your settlement and pin as much of the blame on you as they can for your injuries, given that Florida is a pure comparative negligence state. If they can show you’re even 20% at fault, your compensation will be reduced by that percentage — or more if they can show a higher percentage.

Don’t go it alone against the insurance adjusters. Call me at the Law Office of Mark A. Cornelius, P.A. I will do the research into the medical files and police reports and sort through the details. I will also deal with the insurance company negotiations, and if necessary, take the matter to court. I will fight for your just compensation using the best strategy available in your case.

I have been helping individuals like you for almost three decades. If you were involved in an accident in Almonte Springs, or other areas of Central Florida including Seminole, Orange, Osceola, Volusia, Polk, and Lake Counties, contact me today.