Is Texting While Driving Negligence Per Se?January 16, 2018
Negligence per se is a legal doctrine through which an illegal act (i.e., an act that violates the law) constitutes negligence. In Texas, texting while driving may constitute negligence per se, depending on the circumstances.
Texas’ New Texting While Driving Law: Brief Background
Since September 2017, a new ban on texting while driving has been in effect in Texas. This law (House Bill, H.B., 62)1 prohibits:
- Motorists 18 and younger from using cellphones or other wireless communication devices to “read, write or send an electronic message” while a vehicle is in motion
- Motorists older than 18 from using cellphones or other wireless communication devices while operating a vehicle.
The only exceptions are in the event of an emergency, a situation that reasonably seems to be an emergency, or the motorist being licensed by the Federal Communications Commission (FCC).
So, if there is no emergency and a driver (without an FCC license) texts and causes a car accident:
- The act of texting CAN constitute negligence per se.
- The driver who was texting can be liable for the accident and resulting injuries.
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Proving Texting While Driving Caused a Car Crash
Following a crash caused by texting while driving, the most important evidence is generally cellphone records. These records are discoverable and admissible, according to Texas law, and they can prove facts like (but not necessarily limited to):
- The exact time that a text message or email was sent; a text message with data charges or an email was received; and an email was written or accessed.
- The other people involved in the message; this can be helpful in identifying other potential witnesses who may be able to verify the time of the communication.
When it comes to cellphone records and proving that texting while driving caused a car crash, please be aware that:
- It is necessary to prove that the illegal act (i.e., texting while driving or another illegal use of a wireless device while driving) occurred when the car accident happened – not minutes before.
- A forensic specialist can recover messages that may have been deleted from a phone.
- A lawyer can be an essential ally and advocate, helping you secure the court order to obtain these records, as well as any other evidence necessary to prove liability and help you financially recover.
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1: Complete text of the new Texas texting while driving law