Last Halloween, one of my Legal Assistants watched a movie called Evil Dead. She is a bit of a horror movie connoisseur, and was searching for the scariest thing since the Snuggie.  Evil Dead was pretty scary but I think it is safe to say that it is no match for the text messaging state ban that went into effect in Florida on October 1, 2013.

Okay, here is the deal: everyone knows that texting and driving is dangerous. It usually takes five seconds to read a text message, process it, and reply to it. If you are traveling at 55 miles per hour, that is equal to driving the length of a football field without paying attention to the road. There is a reason why more than 30 states forbid new drivers from using their cell phones while driving. In Florida you could be paying $103 to let someone know you will ‘ttyl’. How does this new law work? It is a secondary offense, which means that you have to be pulled over for something else like speeding or careless driving before an officer can ticket you for texting. Some people are actually petitioning for the law to be enforceable as a primary offense. This would allow a police officer to pull you over for texting without needing you to be speeding or carelessly driving first.

There are some caveats or loopholes to this law. You can still send or read a text message when you are stopped at a red light. If you are old fashioned, sending an email whilst stopped at a red light is also allowed. If you aren’t already quaking in fear, here’s something to think about. David and Linda Kubert were involved in a gruesome car accident earlier this year. The driver who hit them was distracted by incoming text messages, and as a result, crashed into the Kuberts. Both David and Linda lost their legs. Not only did David and Linda sue Kyle Best, who was driving the vehicle that hit them, but they also sued Shannon Colonna the person who had sent him the distracting text messages. Sounds crazy, doesn’t it? The Kubert’s lawyer argued that “We hold that the sender of a text message can potentially be liable if an accident is caused by texting, but only if the sender knew or had special reason to know that the recipient would view the text while driving and thus be distracted.”

This essentially means that if you send a text message to someone who you know is driving at the time, it is considered as if you are sitting in the car with the person you are texting and distracting them purposely. Ultimately the suit against Colonna was unsuccessful, but the fact that the judge upheld the Kubert’s attorney’s argument could be a sign of more aggressive laws regarding texting and driving or sending text messages to someone who is driving. But how do you prove someone is sending/reading a text message and not changing a song or using their navigation? There are a lot of grey areas that can certainly be used as a defense to dispute these violations in court. A good attorney will know how to use these loopholes along with an array of other defenses such as a good driving record, errors in the way the ticket was written, cross examining the officer in court to find any inconsistencies in their testimony and much more, to get your ticket dismissed in court.

Here are some more Scay Facts that you should consider before you reply or even read that Text:

Texting While Driving Causes:

1. 1,600,000 accidents per year – National Safety Council
2. 330,000 injuries per year – Harvard Center for Risk Analysis Study
3. 11 teen deaths EVERY DAY – Ins. Institute for Hwy Safety Fatality Facts
4. Nearly 25% of ALL car accidents

Texting While Driving Is:

1. About 6 times more likely to cause an accident than driving intoxicated
2. The same as driving after 4 beers – National Hwy Transportation Safety Admin.
3. The number one driving distraction reported by teen drivers

Texting While Driving:

1. Makes you 23X more likely to crash – National Hwy Transportation Safety Admin.
2. Is the same as driving blind for 5 seconds at a time – VA. Tech Transportation Institute
3. Takes place by 800,000 drivers at any given time across the country
4. Slows your brake reaction speed by 18% – HumanFactors & Ergonomics Society
5. Leads to a 400% increase with eyes off the road