A teenage girl who we represented two decades ago was driving in Marin County when the sun shone in her eyes for a moment and in the time it took her to pull the sun visor down, she struck and killed a four year old boy who was moving his bike across the intersection while his father, three feet behind the boy, looked on. Three months later, during a court hearing, she actually became hysterical, breaking down before the judge crying that she had “murdered” a child and she deserved to be punished.  She was a scholarship student, already accepted into a good school, someone everyone liked and respected.

It was perhaps five years after that, when she had finished probation (she did not serve any time) and the civil case was finally over, that she wrote something that struck me as remarkably wise. “It only takes an instant…a few seconds when you are driving…and your life is turned upside down. Changed forever. A sneeze, a moment of daydreaming, and you may kill a child and never be the same.”

Distractions when driving can kill, and the modern automobile is rife with distractions.  From the radio or iPod player to the graphics on your GPS map, the modern vehicle is calling your attention away from the road. Add in the “smart” cell phone with its connection to the internet and the combination of attractive distractions is greater today than at any time in history.

You may feel as if you drive on autopilot. You are wrong. Driving requires focus and your full attention. Recent studies have shown that distracted drivers are five times as likely to get into accidents than drivers who concentrate on the road. And that is not just the physical distraction caused by holding food or a smart phone. It is the mental concentration on something other than driving that appears to make the difference, according to these studies. Having a “hands free” telephone made almost no difference in the accident rate, despite the law codes cited below.

It is ironic that the very accessories that auto manufacturers promote to differentiate their vehicles are the ones that can radically increase the chances of accidents. Good music, access to news, access to the internet, detailed GPS graphics that not only show you where you are but what attractions and services are nearby are all tempting additions to the driving experience.

But they are also all distractions and it only takes one time and the smallest of distractions to cause a life-altering accident.

Causing injury to property or persons while driving in a distracted state imposes both criminal and civil liability.

This article shall discuss the California system of civil and criminal liability for districted driving.


The Basic Law:

Violations of the Vehicle Code:

While distracted driving can be caused by a variety of actions, as described later in this article, the newest laws relating to it pertain to smart phones and speaking on cell phones.

At first, California prohibited cell phone and electronic wireless device usage among any driver, transit and school bus drivers. The first laws provided exceptions and allowed for the use of the mobile devices for valid emergency or work-related purposes.

These early laws, however, were specific to not allowing minors any use of the telephones, based on the assumption that teenagers would be more apt to use them unwisely. Those drivers under the age of 18, were prohibited from using a cell phone or any electronic device at all, regardless of whether it was hand-held, hands-free, Bluetooth, speakerphone, or any other means. Sadly, the assumption that adults would use them more judiciously was simply wrong and new laws had to be promulgated.

In late 2016, the State of California enlarged the scope of the laws and penalties considerably. Assembly Bill No. 1785 (AB 1785) expanded the restrictions and prohibited driving while holding a cell phone in one’s hand for any reason while driving. Hands-free use required the use of a mounting device to be legal use of the phone. Hold a phone-pay a fine.

The base fine for Vehicle Code Section 23123 (a) first offense is $20. For second and subsequent offenses, the fine is $50. It is vital to note that the actual cost is usually much larger since the local court will add various assessments which will be significantly more than the base fine. The total for a first violation will likely exceed $150, and a second or subsequent offense can cost over $250. This cost is likely to increase over time.

A violation of the handheld cellphone ban will not count as a point on the driver’s driving record.

Cell phone law VC 23123 (a) changes started on January 1, 2017. Starting the first day of 2017, drivers were no longer are allowed to hold their cellphones in their hands for any reason, including using any of a phone’s apps, such as music playlists.

AB 1785 plugged what safety officials called a major loophole in the state’s hands-free cellphone laws. Those laws originally banned talking and texting on handheld phones while driving. But any other handheld use of a phone, such as shooting videos or scanning Facebook, had been technically legal. This was stopped in 2017.

Under the new VC 23123 (a) law, drivers can still use their cellphones if they do it hands-free, which often means voice activated and operated. However, phones must be mounted on the dashboard or windshield or console. With a phone mounted, the new law allows the driver to touch the phone once, to “activate or deactivate a feature or function … with the motion of a single swipe or tap of the driver’s finger.”

The law is designed to stop people from holding their phones for a variety of uses that have become popular in recent years, including checking and posting on Facebook, using Snapchat, scrolling through Spotify or Pandora playlists, typing addresses into the phone’s mapping system, or making videos and taking photos.

Drivers can also attach the phone holder to the console, or to the dashboard in a spot where it doesn’t block the drivers’ view of the road or get in the way of airbags.

It may be noted that another field of “distracted driving” can be driving under the influence of drugs or alcohol, both of which entail significant criminal penalties. In Europe driving under the influence of alcohol is considered equivalent to assault with a deadly weapon if someone is injured in an accident. In California, if someone is injured due to a driver being under the influence, it can be charged as a felony. We are speaking of significant chance of jail time and suspension of the driving license for many years.

Civil Law:

As discussed in our article on Torts, negligence leads to liability if persons or property are damaged due to that negligence. Distracted driving has become a major source of such lawsuits, whether or not alcohol or cell phones were in use. The plaintiff in such a civil lawsuit seeks damages and must prove by a preponderance of the evidence that the defendant was negligent in driving. Distracted driving, particularly if in violation of the Codes above, would be strong evidence.

People often multitask while driving. But multitasking is a distraction; it takes one’s full attention from the road, and that can cause accidents. No matter whether you are eating with one hand, picking up something you dropped, checking your GPS for the nearest filling station or fiddling with the stereo, you are doing something besides driving, and that carries risk.

Distractions cover a wide range of possibilities:

Adjusting the radio

Monitoring loud or active kids

Eating or drinking

Talking or texting on cellphones

Driving under the influence

Inputting information into a GPS

Shaving or applying makeup while driving.

Distracted driving can be negligent as well as dangerous. Increasingly, distracted driving results in fatalities. It can also affect your insurance premiums and even result in fines or jail time if caught.

Each state has its own set of laws when it comes to distracted driving. It is important to check what the laws and penalties are in your state or any state where you plan to drive. It is where the accident occurs, or the citation or arrest is made that will determine what law applies.

Some states ban all cellphone usage while others ban only texting. As of May 2019, forty-eight states; Washington, D.C.; Guam; Puerto Rico; and the U.S. Virgin Islands ban texting and driving. European nations often have far more onerous laws and penalties. Check the law before you drive.

If you are caught using a cellphone in a way that is banned, you could be cited by police. Fines vary and insurance carriers will likely address the violation by adding a surcharge to your car insurance policy at your next policy renewal.

Car insurance also will be far more expensive and difficult to obtain if the driver is cited for driving under the influence, the most extreme distraction of all. A current car insurance carrier could potentially non-renew the car insurance policy. Car insurance carriers will classify the driver as a high-risk driver and charge much higher rates. It often takes five years (ten years for California) to get back into good driver standing once a DUI is on the driving record.

The California Office of Traffic Safety (OTS) is very clear and specifically defines what it means by “distracted driving.” OTS indicates that distracted driving is anything that takes your eyes or mind off the road, your hands off the steering wheel and specifically calls out texting and mobile cell phone use while driving.

In a civil case, if you admit in deposition that you were performing any of the acts above, then negligence will be easily proven, and you face significant personal liability. And if injury was caused to the other person, you could even face criminal charges connected with reckless driving. The fact that you have avoided accidents for years while doing the same thing such as texting or other actions will mean nothing in that case.


It will take discipline and determination to avoid the distractions that are increasingly inserted into the driving experience. And some distractions-such as children or pets in the car who are acting improperly- can only be addressed by advance planning.  But once you start the engine of your vehicle, you are undertaking a responsibility to others and that responsibility has to be kept in mind constantly. As one judge stated, a vehicle is a five-thousand-pound weapon traveling at sixty miles an hour.  You must treat it with the same care and respect you would any other weapon…or face significant consequences

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