Recently, I read an article from a lawyer suggesting that judges should restrict evidence of distracted driving in auto cases. The author suggested that distracted driving is like drunk driving in that the mere mention of alcohol is so prejudicial that it should be excluded unless the plaintiff can prove that the defendant was impaired through expert testimony at the time of the collision. Frankly, I could not disagree more.
The only comparison I can see with drunk driving and distracted driving is that statistics suggest that accidents are four times more likely to occur in cases in which someone is using a cellphone. Similarly, statistics show that accidents are four times more likely to occur when someone is impaired with a blood alcohol level of only .08 or greater. There is an arguable distinction with alcohol because the effect of alcohol requires expert evidence to establish the degree of intoxication. Expert testimony should not be necessary to establish that distracted driving by using one’s cellphone or texting affects one’s ability to drive their automobile safely. Distracted driving is an epidemic in our state and the rules preventing it should not be weakened.
Only recently, Pennsylvania banned texting while driving. The majority of other states ban all cellphone use that is not hands-free. Clearly, evidence of a driver’s conduct should be admissible at the time of trial and there is no need for an evidence rule or jury instructions to further restrict relevant evidence that has been of probative value. If a negligent driver was adding sugar to his coffee at the time of a collision, that evidence should be permitted as being relevant to establish that the driver was not paying attention. Frankly, evidence that a driver was texting at the time of the collision should be negligence per se. At the very least, the evidence should be permitted to allow a jury to conclude whether the driver failed to act with reasonable care.