We’ve all seen it, whether it is while driving to and from work, or simply on the way back from running an errand: the driver with a cell phone to his ear or glancing down looking at the phone in his lap. According to the National Highway Transportation Safety Administration, 660,000 drivers are using their cell phones or electronic devices while driving in any given hour. In 2011, nearly 400,000 people were killed or injured in the United States because of distracted driving. Our firm, Stark & Stark, represents people injured by the negligence, inattention and carelessness of motorists. Sadly, we have seen an increase in accidents caused by distracted drivers on cell phones.

While many drivers are under the impression that if they are using a hands-free device, they are not distracted, the reality is that hands-free is not risk-free. Any time a driver takes his mind off the road while driving, they are not focusing on the road in front of them.

New Jersey is at the forefront in the battle against distracted driving, and recently new legislation was signed into law that not only raises the fines for distracted drivers, but also makes driving and talking or texting a primary offense. Judges can also suspend a driver’s license for 90 days for anyone convicted of third or subsequent offenses and impose three motor vehicle points. This law is scheduled to go into effect in July of 2014.

Currently, there is also proposed legislation that would allow police officers to automatically confiscate a cell phone if the responding officer has reasonable grounds to believe that the driver involved in the accident was operating a hand-held wireless telephone while driving a motor vehicle.

Is this pending legislation necessary, or does it violate our constitutional right to privacy? This surely will be a battle in the Courts, but one thing is certain: New Jersey drivers need to put the phone down while they drive. In light of the mounting statistical data and research evidence tying distracted driving to serious and fatal accidents, we should all take steps to dissuade and decrease instances of distracted driving.

But what can we do?

Well, pledge to yourself to keep off the phone while driving. If you want to make it official, make the No Phone Zone Pledge, available on the New Jersey Department of Law & Public Safety website. Better yet, put your phone somewhere out of reach while you are driving.

Following a recent New Jersey Appellate Division decision, efforts to battle distracted driving in the state experienced a major setback. In State v. Malone the court ruled that while a motorist is prohibited from holding a telephone to send a text message or electronic mail, a driver is permitted to activate, deactivate or initiate a function of his telephone, including answering the phone, ending a phone call or dialing a phone number. It seems to make no sense to ban all texting, but allow motorists to dial a ten digit phone number while driving. The court seemed to draw an arbitrary distinction between searching for and pressing number keys on a phone versus letter keys. Obviously, either act is distracting to a driver.

After State v. Malone, it is clear that we must turn to our legislators, our elected representatives, and tell them distracted driving cannot be countenanced in any form. We must lend our support to good legislation already in the pipeline that will help us eradicate distracted driving in our state.

David Schmid and Evan Lide are litigation attorneys with the Accident and Personal Injury Group of Stark & Stark. www.stark-stark.com

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