Texting and Driving in North Carolina and South Carolina

According to the Harvard T.H. Chan Center for Public Health, in 2011, 3,331 people lost their lives and 387,000 suffered injuries in crashes involving a distracted driver. According to the Greensboro News & Record, in 2013 law enforcement officials cited approximately 3,600 statewide for breaking the law. A WRAL Investigates report found that 1,458 people were cited for texting while driving in Wake County in 2013 but of the 1,367 cases disposed of in the county that year, fewer than half resulted in drivers paying the $290 in fines and court costs.

However, even with increased awareness and with new anti-texting laws in recent years, we’re not making a significant dent in preventing texting and driving. The obvious question is “Why not?” The answer is that the new texting laws are hard to enforce. It is easy for drivers to get around the law by claiming that they were not texting, and it is difficult for officers to prove otherwise. Thus, many states have gone so far as to make it illegal to even hold a hands-free communication device while driving, and North Carolina is contemplating doing the same.

Currently, in North Carolina under N.C.G.S. § 20-137.4A, which became law in 2009, it is unlawful to use a mobile telephone for text messaging or electronic mail while driving. However, the fine is only $100.00 plus court costs, and no driver’s license points or insurance surcharge can be assessed as a result of a violation. Moreover, a violation does not constitute negligence per se or contributory negligence per se by the driver.

South Carolina’s Code Section 56-5-3890 is similar to North Carolina’s law. However, South Carolina’s fine is one of the lowest in the country. Ticket penalties are only $25.00 for the first offense and $50.00 for each subsequent offense. Moreover, an officer cannot pull the driver over unless he or she has a clear and unobstructed view of the driver using a cell phone or mobile device.

In North Carolina, Senate Bill 393, called the Brian Garlock Act, proposes to make it illegal to hold a cell phone while driving. Under the bill, a person who holds a mobile telephone or electronic communication device, including a smart watch, in his or her hand or hands while driving shall be presumed to be using it. Mecklenburg Senator Jeff Tarte is one of the primary sponsors of the bill. However, the bill will need the House and Senate approvals before the governor can sign it into law.

Until the current anti-texting laws are improved, the civil courts sort out some of this issues involving distracted driving. Currently, there are not any case law in North Carolina or South Carolina specifically allowing punitive damages for distracted driving, but a strong argument can be made for such damages. Punitive damages are damages awarded in addition to actual damages (such as medical expenses and pain and suffering) when the defendant acted with recklessness, malice, or deceit. Traditionally, punitive damages in auto cases were mostly awarded against drunk drivers. However, more and more judges across the country are allowing punitive damages in cases involving a texting driver.

Unless the at-fault driver admits to texting and driving, you probably will have to hire an attorney to file a lawsuit and serve requests for production under Rule 34 for the Rules of Procedure or issue a subpoena under Rule 45 of the Rules of Procedure to obtain the at-fault driver’s cell phone records. Typically, the production request will be directed to the driver and not the cell phone carrier, because cell phone companies will fight tooth and nail to prevent turning over any data. This is why it is essential to enlist the help of a skilled attorney.

If you were in an accident and suspect that the other driver was texting, please contact attorney Brian Steed Tatum at the Tatum Law Firm right away.