When you slip behind the wheel of your car, you take control of several thousand pounds of steel, aluminum and glass. Losing focus or control, for even a second, can result in expensive property damage, catastrophic injuries, or even death. Yet, millions of people risk those horrifying results every time they turn their attention to something other than driving. From eating to cell phones, there are dozens of things that can draw a driver’s attention away from driving. While New Hampshire may not be able to implement laws to prevent everything that can take attention away from driving, they have passed a texting and driving law that is meant to reduce distracted driving due to cell phones and other electronic devices. To learn more about this law, and what your options may be if you were injured in an accident by a driver who violated it, contact Friedman & Bresaw, PLLC at (603) 707-4800 for a consultation with one of our experienced personal injury attorneys.
What Is Distracted Driving?
The National Highway Traffic Safety Administration (NHTSA) indicates that in 2023, 3,275 people died in car accidents involving distracted driving. NHTSA defines distracted driving as any activity that diverts the driver’s attention away from driving. Examples of distracted driving include eating and drinking, changing the radio station or volume, adjusting air conditioning or heat, changing settings on a navigation system, talking to people in the vehicle, and talking or texting on the phone.
When sending or reading a text, the driver takes their eyes off the road for five seconds. In that time, at a speed of 55 miles per hour, their vehicle will continue moving the entire length of a football field without the driver looking at the road. Depending on whether the driver is driving in an urban or rural location, the time of day, and traffic, a football field is enough time for the driver to cause serious harm to many people and a lot of property.
What Is New Hampshire’s Texting and Driving Law?
In 2015, New Hampshire enacted RSA 265:79-c. This texting and driving law makes it illegal to operate a motor vehicle while using a handheld cell phone or mobile electronic device. This means that drivers cannot:
- Make or receive phone calls
- Read, compose, or view emails or text messages
- Access or browse the internet
- Manually type information
- Input information into a navigation system
This law also indicates that if the driver is caught by law enforcement with their phone in the immediate vicinity of their ear, they are presumed to have been on a phone call and can be cited for violating the law. Hands-free technology, such as having the phone connected to the motor vehicle’s Bluetooth stereo or using speakerphone for conversations or using the phone’s ability to read texts aloud and to dictate a response without typing, is allowed under this law.
Additionally, under this law, the use of a cell phone is a primary offense. This means that law enforcement can stop and cite a driver solely for cell phone usage; they do not need another reason. A first offense is a $100 fine, with fines increasing to $250 for second offenses and $500 for third or subsequent offenses within two years of the first offense. If a driver is fined for violating this law after an accident, that can be used as evidence that they were distracted while driving and at fault for the accident.
How Does the Texting and Driving Law Affect Teen Drivers?
The law is slightly different for teenage drivers. While drivers over 18 can use hands-free technology to use their cell phones while driving without violating the texting and driving law, drivers under 18 are prohibited from using a cell phone or any other electronic device in any way while driving. This means they cannot use hands-free technology. Teen drivers face the same penalties as adult drivers, with the addition of facing license suspension or revocation for violating the texting and driving law.
Are There Any Exceptions to the Texting and Driving Law?
There are several exceptions to New Hampshire’s texting and driving law for both adult and teen drivers. Understanding these exceptions is important not only to avoid the fine, but to avoid accidents and keep the roads safe for all drivers.
Drivers will not be cited and fined for using their electronic devices under the following circumstances:
- Calling Emergency Services: If the driver is calling 911, police, fire department, or an emergency medical provider while driving, they are not violating the texting and driving law. They will need to be able to prove that they were calling one of these emergency services.
- Adjusting a Two-Way, Non-Cellular Radio With One Hand: Better known as walkie-talkies, Citizens Band (CB) or ham radios, these devices are exempt from the texting and driving law as long as the individual is only using one hand to adjust, send, or receive messages.
- Hands-Free Technology: Drivers may make use of the phone’s features, such as Bluetooth technology, speakerphone, speech-to-text functions and others to use their devices while driving. The law does not preclude drivers from using either hand to initiate such functions, but it does require that they not need to hold the phone in order to make use of those functions. This exception does not apply to teen drivers.
- Acts Required By Ignition Interlock Devices: If the driver has an ignition interlock device of any kind on their vehicle, they are not prohibited from taking any actions required by such device.
- Not Being in Motion: If the driver is in a vehicle that is not in motion because it is pulled to the side, off the road, and/or legally parked, they are not considered to be driving. This includes being parked on the shoulder of a road or in a parking lot. However, it does not include being temporarily stopped, such as at a stop sign, traffic light, or in traffic.
What Happens If the Driver Who Hit You Violated the Texting and Driving Law?
Generally, an accident resulting from a driver who violated the texting and driving law is treated the same as other accidents. The at-fault driver will likely be cited by law enforcement, the victim will file a claim with the at-fault driver’s insurance, and the claim will either be negotiated and a car accident settlement agreed upon or go to court.
However, if the driver has been cited multiple times for violating the texting and driving law, it may be possible for the victim to recover enhanced compensatory damages in a lawsuit. Repeated violations of the law may indicate reckless or wanton behavior on the part of the at-fault driver, which may allow the court to view it as being so egregious that the conduct could have caused greater injury. If the court makes that determination and allows enhanced compensatory damages, it would mean that whatever damages are awarded would be doubled. Individuals may want to consult with a personal injury attorney at Friedman & Bresaw, PLLC, to learn more about whether their case may qualify for these damages as well as what other expectations they may have.
How Do You Prove the Other Driver Was Texting?
Most people are unlikely to freely acknowledge texting or making a phone call when they get in an accident. This means that if the victim suspects that the other driver was violating the texting and driving law when the accident occurred, the victim will need to prove it. There are several ways that individuals may be able to find evidence that the other driver was using their phone while driving, including:
- Report the Accident: Reporting the accident to law enforcement is a crucial step in any accident. If the other driver acknowledges using their phone to law enforcement, that may be written into the accident report, which may make it easier to prove the other driver was distracted.
- Witness Testimony: Other people in the other driver’s vehicle may acknowledge the driver was on the phone. Individuals in the victim’s car may have seen the driver using their phone just before or as the accident happened. People in other vehicles, pedestrians, cyclists, or anyone else who witnessed the accident may have seen the driver using their phone. Collecting contact information and statements from all witnesses can help prove the other driver violated the texting and driving law.
- The Phone: The other driver’s phone may have text messages or a call log that shows texts sent or calls made or received at the time of the accident. Emails and social media messages are also often time-stamped and may show the driver was sending or reading them at the time of the accident. While the driver is unlikely to hand their phone over to the victim, law enforcement may ask to look at it and the driver may choose to allow it. If law enforcement sees evidence that the phone was being used, they will note it in the accident report.
- Cell Phone Records: If the case goes to court, an attorney can subpoena the other driver’s cell phone records from their carrier. These records may indicate that the driver was texting or engaging in phone calls at the time of the accident.
- Dash Cameras: Many, if not most, drivers have dash cams these days. If the other driver has one, depending on the features of the dash cam, it may show the other driver using their phone or provide audio that indicates they were on a phone call. Dash cams from other vehicles may also show the driver using their cell phone.
- Other Cameras: Traffic cameras, doorbell cameras, or security cameras may all have footage indicating the driver was on their phone, depending on where the accident occurs.
- Social Media: Publicly available posts or comments on the driver’s social media may have time stamps showing they were engaging in the activity when the accident occurred. Other posts may have admissions of using their phone made to friends or family.
- Forensic Evidence: Evidence at the accident scene may not conclusively prove the use of a phone, but can be used to support the theory. For example, a lack of skid marks may indicate the driver was not paying attention and did not brake in time.
Do You Need a New Hampshire Personal Injury Attorney?
New Hampshire’s texting and driving law is meant to reduce distracted driving and protect all motorists on the road. When a driver violates it, the potential fines may be the least of their worries. If you have been hit by a driver who was using their phone while driving, an experienced personal injury attorney with Friedman & Bresaw, PLLC may have the capacity to guide you in finding evidence that the other driver was using their phone as well as negotiating a settlement with the insurance company or representing you in court, if necessary. Call (603) 707-4800 to arrange a consultation and review of your case.
