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Proving a Distracted Driving Case

Texting while Driving

When you get behind the wheel, you’ve got to do more than just show up — you’ve got to pay attention.

Brain studies have shown that humans cannot focus on two things at the same time, and trying to perform an additional task while driving — such as texting or talking on a cell phone — dramatically interferes with a person’s ability to concentrate on the road. This is true even when the driver is not holding or dialing the phone. Not surprisingly, when drivers are distracted, their chances of causing and/or being involved in a motor vehicle accident rise significantly.

Distracted driving is a huge problem in the United States, where 69 percent of drivers ages 18-65 reported they had talked on a cell phone while driving in the last 30 days, in a 2011 survey conducted by the Centers for Disease Control and Prevention. (By contrast, in the U.K. this percentage was only 21.) There are three main types of distracted driving:

  • Visual – driver takes his eyes off the road
  • Manual – driver takes his hands off the wheel
  • Cognitive – driver takes his mind off driving

In Colorado, any activity that diverts a driver’s attention away from the primary task of driving is considered distracted driving, including using a cell phone. If you’ve been the victim of a crash involving a distracted driver, there are ways to help prove your case, including:

Eyewitness Testimony

One of the most obvious ways to prove a distracted driving case is to locate witnesses who saw a driver on his phone when the accident occurred. These eyewitnesses can be pedestrians at intersections or along the side of the road, motorists in adjacent lanes, and even passengers in the distracted driver’s vehicle at the time of the collision.

Cell Phone Records

Courts have held that cell phone use while driving often constitutes negligence and liability. But without an eyewitness who actually saw the defendant with a cell phone to his ear or in his hand, this is not always clear-cut, especially when distracted drivers are using hands-free devices.

According to the American Association for Justice, along with the traditional discovery methods that trial attorneys use to secure evidence and build a case — such as interrogatories, requests for production of documents, and depositions — they should also subpoena all cell phone or texting records from a defendant’s cell phone service provider to prove that a cell phone or electronic device was in use at the time of the accident.

Enforcing Distracted Driving Laws

Like many states, Colorado has laws in place restricting distracted driving, but they can be difficult to enforce and consequences may only happen after an accident has already occurred. Experts agree that the best way to curb distracted driving is probably not to pass more laws, but instead to create a culture of drivers who resist the urge to talk on the phone or text while driving because of the serious dangers imposed.

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My daughter and I first consulted with Dan Rosen after a very serious auto accident. Dan had several phone conferences with me, and Tracie was available whenever I called. We would recommend personal injury attorney Dan Rosen to anyone!
Sally from Denver, Colorado

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