In April, Arizona became the 48th state to ban texting while driving, and only the 16th state to enact a hands-free cell phone law. On April 22, 2019, Governor Doug Ducey signed HB-2318 into law banning handheld cellphone use. This was the 12th year the Arizona Legislature considered such a ban. Support for the new law recently increased following the death of Salt River Police Officer Clayton Townsend, who was killed by a driver who hit him while texting his wife.
The new law makes it illegal to hold a phone, to make or answer a call while driving, to read or send a text message while driving, and to hold or support a device with any portion of the body while driving. Thus, the new law not only bans texting while driving, but effectively bans all hand-held cell phone use while driving. Currently, officers in Arizona have authority to pull over drivers in violation of the law, but can only issue warnings until January 2021. Starting in January 2021, a first violation will result in a ticket between $75 to $150. There are, however, exceptions to the law that include making an emergency phone call and for use of a handheld device while stopped at a traffic light.
Effect on Civil Litigation
This law will likely have an effect on establishing negligence in motor vehicle accidents resulting from the use of a cellphone. In civil cases arising from motor vehicle accidents, plaintiffs may seek to introduce evidence of a violation of the new law as evidence of negligence per se as it is negligence per se to violate a statute. However, the plaintiff must also establish the violation of the law was a proximate and actual cause of the injury.
Notably, under the new law, merely holding a cellphone or supporting the device with one’s body while driving is a violation of the statute. This means plaintiffs may seek evidence regarding not only whether the defendant driver was using the phone at the time of the accident, but where the phone was in relation to the defendant’s body at the time of the accident in order to establish a violation of the statute. In this regard, defense counsel should be sure to determine whether the violation was an actual and proximate cause of the accident. For example, a defendant could be cited for violating the statute if a cell phone was in his hand or on his lap at the time of the accident. However, this does not necessarily mean the presence of the cellphone on the defendant’s person actually caused the accident. Defendants and their counsel must thoroughly explore the issue of causation regardless of whether defendant violated the statute.
Arizona’s new distracted driving law will allow plaintiffs to assert negligence per se claims in civil cases arising from motor vehicle accidents where it is suspected the defendant driver violated the hands-free cell phone law or was actually cited for a violation. However, it should not cause a significant change in the nature of the litigation as distracted driving could previously be deemed negligent conduct prior to the new law. Defendants and their counsel should be sure to emphasize that the plaintiff must still prove that the violation was an actual and proximate cause of the injuries resulting from the accident regardless of any violation.