A bill being debated in the South Carolina House of Representatives would make it possible for police to charge drivers who are holding cell phones while driving, eliminating the need to prove that they were using the device to send text messages or use any other functionality other than to make calls. The current law does allow drivers to use phones for making calls.
The issue with the current law is that it is nearly unenforceable. As drivers can hold devices to make calls, it is nearly impossible for law enforcement to know what someone is doing with the phone. To be able to issue a citation, there usually needs to be an admission by the individual that they were texting. Due to that, the law was rarely enforced and served mainly as a deterrent to drivers.
The bill under consideration would take away the need for law enforcement to prove that the device was being used for something other than a call. Law enforcement seeing a driver simply holding a device would be enough to allow them to issue a citation. Doing this eliminates the questions about what the driver was actually doing.
The use of cell phones and distracted driving has become a pressing topic, due to the drastic increases in accidents and deaths because of distracted driving. From a liability standpoint, a driver who is texting and driving would be somewhat at fault in any personal injury litigation arising out of an auto accident. South Carolina uses what is known as the modified comparative negligence standard. When a court is deciding whether to hold someone civilly liable for damages, in South Carolina, they can use the negligence of the plaintiff to reduce and sometimes completely eliminate an individual’s recovery.
The example goes like this: Steve is driving down the road, texting his friends to tell them he’s on the way. Jack is leaving the grocery store, and pulls out in front of Steve, who has the right of way. Steve never sees Jack because he is texting, and plows into Jack at 45 miles per hour. Both parties are injured, but Steve sues Jack for damages. If the court determines that Steve was negligent in texting and failing to reduce speed, they can reduce Steve’s damages. Additionally, if the Court finds that Steve was more negligent than Jack (say 51% to 49%), Steve can be completely barred from recovery, even though Jack pulled into traffic.
Defendants in personal injury litigation are always looking for any opportunity they can find to try and assert negligence on the part of a plaintiff. This law removes a lot of doubt in terms of police issuing citations. And citations like these can reduce your chances of success in the courtroom.
Ladson F. Howell, Jr. is a car accident attorney with the law firm of Howell & Christmas LLC in North Charleston, South Carolina. He can be found on Facebook and Twitter.
