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Driving While Distracted (DWD) Defenses

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The federal government defines driving while distracted as "any non-driving activity a person engages in that has the potential to distract him or her from the primary task of driving and increase the risk of crashing." Such a potentially broad scope of activity is challenging to legislate and even more difficult to enforce. In truth, motorists have been driving while distracted (e.g., eating or applying makeup) probably as long as there have been cars. However, laws dedicated to distracted driving didn't really exist until cell phones became widely used.

Studies have suggested that the risk associated with talking or texting on a cell phone while driving — sometimes known as driving while "intexticated" — is akin to the risk associated with drunk driving. Most distracted driving laws focus on talking and texting, but it will take time before the legal implications are well-known. There are many questions about the application and enforcement of these laws. For example, what happens if you were tweeting, emailing or programming your GPS? Experienced driving under the influence lawyers are best qualified to evaluate the defenses that may help a person charged with driving while distracted. If you have been accused of driving while distracted, contact an attorney in your area to learn more about the current state of the law.

Driving While Distracted Laws

To date, it is against the law in 19 states to drive while texting (and 23 more states are considering similar laws), and in nine states for novice drivers or in other limited circumstances. Only six states prohibit the use of handheld cell phones for all drivers, though more states prohibit the use of cell phones for novice drivers and other circumstances.*

State involvement with DWD

As of the time of writing, eight states prohibited local government from banning cell phone use:

  • Florida
  • Kentucky
  • Louisiana
  • Mississippi
  • Nevada
  • Oklahoma
  • Oregon
  • Utah

A complete list of distracted driver laws is available at the Governor's Highway Safety Association website.

Driving while "yakking" or "intexticated" can result in traffic citations, criminal charges (e.g., negligence, reckless driving and vehicular manslaughter) and civil lawsuits (e.g., personal injury). Possible penalties can include fines, insurance premium hikes, jail time, and large monetary judgments. In New York, for example, if you are caught talking on a cell phone you'll be fined $130, but no points will be charged to your license. However, if you are caught texting you can have two points charged to your license in addition to the $130 fine. In addition, legislation has been proposed that would allow the state to criminally charge distracted drivers involved in crashes that result in injury or death.


The exact charges, defenses and consequences vary depending on the unique circumstances of your case and the laws in your area. You may wish to speak to a local lawyer to learn about the distracted driver laws in your jurisdiction.

Driving While Distracted Defenses

Unlike the objective blood alcohol content (BAC) test used in DUI cases, much of the evidence used to prosecute distracted drivers — such as officer or witness testimony — is subjective. A defense attorney can challenge the credibility of witness testimony as it may be influenced by bias, poor eyesight or memory, as well as other factors. Examples of other possible defenses include:

Lack of Probable Cause. A police officer needs probable cause (a reasonable belief that a crime has been or is about to be committed) to stop, detain or arrest you. If a distracted driving law has primary enforcement, the police can stop you if they see you talking on a phone. Since distracted driver laws are largely traffic citations, the rules are less clear regarding searches. However, in states where driving while talking or texting is a secondary offense you can't be stopped, searched or arrested for distracted driving without an otherwise lawful reason for the stop, such as speeding. In all circumstances, your attorney will examine the justification for the stop. Without probable cause, the evidence may be disallowed and your case may be dismissed.

Miranda Violation. If you are placed under arrest, you must be read your Miranda rights, which are rights that protect you from self-incrimination. For example, you have the right to have an attorney present during questioning. If the police interrogate you without your attorney, any statements you made may not be used against you.

Affirmative Defenses

If you were involved in a car accident, you may be sued by injured parties. Even if you were caught gabbing on the cell phone or driving while intexticated, their injuries may not have been your fault. In these circumstances, certain affirmative defenses may be asserted by the defendant to limit or eliminate liability such as:

  • Contributory Negligence – If the plaintiff is even 1 percent responsible for the accident, he cannot recover damages. Very few states still have pure contributory negligence laws.
  • Comparative Negligence – Each party is assigned a degree of fault for the accident. The injured party's award is reduced based on the degree of fault.
  • Assumption of the Risk – For example, if a passenger in the car gave you the phone for the purpose of talking or sending a text it may be argued he assumed the risk of any resulting accident or injury.

Some states have adopted variations on these concepts such as limiting the amount the plaintiff may be at fault to no more than 50 percent or he cannot recover any damages. To learn more about the laws in your state, you may wish to contact a DWD attorney.

Other Cause of Accident. If you were involved in an accident and you were in fact driving while "intexticated," it is still possible you did not cause the accident. Other factors that may have caused the accident could include weather, faulty airbags or tires, poor signage, or even the other driver's actions. The presence of other factors could get a felony charge reduced to a misdemeanor or, in some situations, the charges dropped altogether. In a civil case, any fault attributable to the plaintiff can reduce or eliminate a judgment for personal injury and/or wrongful death damages. An experienced attorney will conduct a thorough investigation of the accident to look for factors that will aid your defense.

Identity Questions. In DWI/DUI cases, if there is insufficient evidence that you were driving the car, your attorney may raise this defense. Similarly, in a distracted driving case, if there is insufficient evidence that you were driving or that you were the person talking or texting, you may have a valid defense. While phone company records can establish the time and date of a call or text, they cannot tell you who operated the device. Other passengers in the vehicle may have been using the handheld device and can testify on your behalf.

Special Exceptions. Exceptions for emergency calls to police, the fire department and medical personnel, and similar emergency situations, are possible defenses to talking or texting on a cell phone. Additional exceptions may exist by law in your jurisdiction. For example, in California cell phone calls can be made while driving on private property.

If you have been charged with distracted driving, a DWD attorney will review your case to determine whether these and/or other defenses are applicable to your case.

Driving While Distracted Attorney

Driving while distracted can have very serious consequences. However, the law is evolving and the charges can be difficult to prove. Even if you were driving distracted, an accident may not have been your fault. It is very important to have an experienced attorney evaluate your case and any defenses that can help reduce or dismiss the charges.

* Governor's Highway Safety Association