PRESUMPTION OF FAULT IN ACCIDENTS WHILE USING CELL PHONE

New Driver Cell Phone Law

California Vehicle Code Section 23123.5

Our firm recently settled a claim on behalf of an auto accident victim in which the opposing party was using her cell phone while driving. When asked at the scene about driving with her cell phone in hand, she professed that she was not texting or talking but was, instead, “just using my Google Maps.” While using a GPS in hand used to be legal, it is now officially illegal!

 
Did you know…
January 1, 2017 marked the start of all things illegal on your smartphone while driving. That means on top of the already no texting or holding the phone to your ear while driving law, the following are also illegal: selfies, Pokeman Go, Facebook, Instagram browsing, holding your phone while using the speaker function, and looking at its GPS. Basically, if you have to grab your phone to do ANYTHING while you drive, it’s illegal pursuant to VC 23123.5.

 
So what is legal?
Your phone must be mounted and can be utilized in a one-touch fashion. That means, if you’re getting a phone call, you can press accept. You can then speak on your phone while it is mounted, but not while it is up to your ear or in your hand. If you want to end the call, you can press end. And that’s about it.

 
What happens if you get caught swiping right while driving?
The California Office of Traffic Safety has issued a press release with an explanation of the new law, California Vehicle Code Section 23123.5, as well as the fines incurred by violating this law. Your first violation will result in an infraction and a $20 fine. Every subsequent violation results in a $50 fine. You may think that’s not so bad, but keep in mind: these are the BASE fines. After fees and penalty assessments, you are actually looking at $160 for the first violation and $285 for the subsequent violation.

 
How the law affects auto accident cases.
An auto accident case involves a claim of “negligence” against the opposing party. To prove a cause of action for negligence, you need to prove: (1) that the opposing party was driving below the standard of care (i.e. in an unreasonable or unsafe manner); and (2) that the unsafe driving caused the accident.

Oftentimes, the facts of the accident are contested and it becomes a “he-said she-said” scenario. This can make it hard to prove who was driving in an unsafe manner. However, now that VC 23123.5 makes it illegal to drive while using the phone, a California Court will presume you to be driving in an unsafe manner if you violate VC 23123.5. This is called Negligence Per Se. The only thing left to prove is if this unsafe manner caused the accident.

If you have any questions regarding this issue or any other issue, please contact Kirakosian Law.