Texting while driving is illegal in New Jersey. That means that if someone hit you while they were texting and driving, you can use that as the foundation of your case against them. So how do you prove texting and driving in a crash?
The strongest way to prove that someone was texting while driving is with testimony that you saw them doing it with your own eyes. Phone records are weaker evidence because they could have texted with a hands-free device or had a passenger send it. However, you may still be able to get compensation or even win your case against them without having to prove they were texting.
For help with your car accident case, call Agrapidis & Maroules, P.C.’s NJ car accident lawyers at (201) 777-1111.
What Constitutes Proof of Texting While Driving in New Jersey?
In order to prove that the other driver caused the crash because they were texting and driving, you need clear evidence that the phone was in their hands.
Statutory Requirement
While all kinds of distracted driving can be “enough” to win a car accident case, the texting while driving statute in New Jersey has specific things it makes illegal. Under N.J.S.A. § 39:4-97.3…
- Drivers cannot use a cell phone while driving
- Hands-free devices are allowed
- Drivers can use one hand on the phone and one hand on the wheel if their life/safety is in danger or they are reporting an emergency.
Under this statute, to “use” a cell phone includes
- Talking on it
- Listening to someone on the telephone
- Texting
- Sending other messages.
Eyewitness Testimony
The best way to prove that someone was texting and driving is eyewitness testimony that the phone was actually in their hand. Phone records and the fact that they were looking down help show they were texting, but witnessing the phone in their hand is the strongest evidence.
Video
Rarely, drivers have cameras in their cars to record what is happening in case of a crash or a crime. If they recorded video of themselves using their phone while driving, our NJ personal injury lawyers can demand that video as part of your case.
Phone Company Records
Records of the texting transaction from the phone company or Apple (in the case of iCloud messaging) can be obtained as part of a case. This, plus proof they were looking down, helps prove texting.
Timestamps on Phone
The same is true of timestamps in the texting app: they show when messages were sent and received, but they do not prove the driver was using their hands or looking at the phone. You would still need to supply that through eyewitness testimony.
The Problem with Evidence of Texting While Driving
Texting while driving is only illegal if you are using your hands. This means there can be records of texts sent while the driver was operating a vehicle, but they might argue that text was perfectly legal.
You Need to Prove the Phone was in Their Hands
The only way you can prove they violated the texting and driving law is if their hands were on their phone typing the text.
While you might be pretty sure they were texting because they were looking down, you need to convince the jury.
Passengers Can Send Texts
The reason a text was sent at the time of the crash could be because a passenger sent it. Unless you see the phone in the driver’s hands, it is harder to prove they were texting and driving.
Hands-Free Texting is Legal
Drivers can also send texts while driving, as long as they use voice-operated hands-free devices. This means that phone records are not enough to prove the phone was in their hands in a dangerous situation.
Getting No-Fault Insurance Damages
The good news is that you might not need to prove the driver was texting and driving at all to get your damages paid.
NJ’s No-Fault System
In New Jersey, we use a no-fault insurance system. This means you can file a claim with your own insurance for economic damages.
Your insurance might have enough to cover most of your economic damages, but it does not cover your deductible or your pain and suffering.
Proof of Fault Not Required
Filing a claim with your own insurance does not require proof of fault. This means they can pay these damages without any proof that the other driver was texting and driving – or that they did anything wrong.
Other Proof of Fault Available
You can also file a car accident claim based on other facts that put the driver at fault. If they did something else wrong to cause the crash, we do not have to prove that they were specifically texting to win a claim against them.
Breach of Duty Required
Other violations might have occurred that put the driver at fault. For example, if they were texting and driving, which caused them to run a red light, we do not need to prove they were texting. Proving they ran the red light would be enough to win your case.
Examples
When drivers are texting behind the wheel, they often violate other duties at the same time, by
- Looking down instead of looking at the road
- Speeding up
- Running red lights and stop signs
- Swerving out of their lane
- Failing to stop for obstructions in the road that they should have seen
- Failing to yield.
FAQs for Texting and Driving Cases in NJ
Can You Win a Texting and Driving Injury Case if There Was No Ticket?
Yes – and in fact, there probably won’t be a ticket in your case. Police often will not write tickets after a crash because they do not want to be seen as the one deciding who was at fault. That’s a question for the judge and jury.
Plus, police officers also might refuse to write a ticket based on your report alone if they didn’t witness it themselves.
Does it Help Your Case if They Get a Ticket?
If they did get a ticket for texting while driving, it is possible they were found guilty of that offense or pleaded guilty and admitted to the act. This essentially answers the question in your case and can be used as proof that they were indeed texting.
Will Insurance Cover Texting and Driving Crashes?
Both your insurance and the other driver’s insurance should cover texting while driving crashes. However, the other driver’s insurance might cover property damage only, not bodily injury.
If that is the case, you may need to use your uninsured/underinsured motorist coverage for additional compensation.
Call Our NJ Car Accident Lawyers for Help Today
Call (201) 777-1111 for a free case evaluation with the Fair Lawn, NJ car accident attorneys at Agrapidis & Maroules, P.C. today.