Determining Liability After a Car Wreck in Georgia: Use of Electronic Devices – OCGA 40-6-241

Hands Free Driving in Georgia

The use of electronic devices is one of the most talked about road safety issues of the past decade, yet many drivers are still confused about exactly what the law has to say on the subject. Today, we’ll go over everything you need to know about statute 40-6-241 and what it says about electronics usage behind the wheel.

First, however, let’s go over the concept of negligence per se, and why traffic statutes are so important for determining civil liability after a car accident.

Negligence per se is the idea that breaking a safety rule, any safety rule, is inherently negligent behavior. This means that if someone breaks a safety rule and injures another person, and the injured person decides to sue for compensation, the plaintiff gets to skip the part of the process where they would normally have to prove that the defendant was acting in a way that a reasonable person wouldn’t. Simply breaking the safety rule is considered unreasonable by definition.

All of the rules of the road count as safety rules, including the one we covered last week, statute 40-6-205, which has to do with stopping in the middle of an intersection. This week, let’s dive into 40-6-241 and talk about all the ways to commit negligence per se with an electronic device.


What Kinds of Electronics Can Be Used While Driving?


Statute 40-6-241 is a complicated one, so let’s break it down into easy pieces. The first section simply defines some terms, mostly those surrounding different kinds of electronic devices. It also defines “utility services,” because utility workers are exempt from 40-6-241 when responding to a utility emergency. Just like in the other statutes we’ve covered that involve utility services, this term covers electricity, water, gas, phone lines, and just about any other form of infrastructure that might require workers to operate on public roads.


(a) As used in this Code section, the term:

(1) “Stand-alone electronic device” means a device other than a wireless telecommunications device which stores audio or video data files to be retrieved on demand by a user.

(2) “Utility services” means and includes electric, natural gas, water, waste-water, cable, telephone, or telecommunications services or the repair, location, relocation, improvement, or maintenance of utility poles, transmission structures, pipes, wires, fibers, cables, easements, rights of way, or associated infrastructure.

(3) “Wireless telecommunications device” means a cellular telephone, a portable telephone, a text-messaging device, a personal digital assistant, a stand-alone computer, a global positioning system receiver, or substantially similar portable wireless device that is used to initiate or receive communication, information, or data. Such term shall not include a radio, citizens band radio, citizens band radio hybrid, commercial two-way radio communication device or its functional equivalent, subscription based emergency communication device, prescribed medical device, amateur or ham radio device, or in-vehicle security, navigation, or remote diagnostics system.


As for the electronic devices themselves, these are divided into three basic categories: wireless telecommunications devices, standalone electronic devices, and other.


Wireless telecommunications devices include things like cell phones, tablets, computers, pagers, and portable GPS units — anything that uses cellular data or Wi-Fi to send and receive messages. Standalone electronic devices include things like cameras and MP3 players that hold visual and/or auditory media but do not have the connectivity of a cell phone. Both of these categories of devices are governed by statute 40-6-241, but things that fall into the “other” category are not.


“Other” devices include those that use radio waves instead of cellular data or Wi-Fi, those that are medically prescribed, and those that are built into the car for navigation, security, or diagnostic purposes. This doesn’t mean, of course, that it’s okay to use these devices in a way that makes you a distracted, unsafe driver, just that they aren’t specifically regulated by the more detailed requirements of 40-6-241.


Exercising Due Care and Never Driving Distracted

Statute 40-6-241 is all about preventing accidents caused by distracted driving, so the next section lays out this purpose in simple terms.


(b) A driver shall exercise due care in operating a motor vehicle on the highways of this state and shall not engage in any actions which shall distract such driver from the safe operation of such vehicle.


In other words, regardless of any technicalities or loopholes in 40-6-241, all drivers always have a responsibility to drive carefully, be aware of their surroundings, and avoid activities that interfere with their ability to do so.


Hands-Free Devices

It’s illegal to hold any of the devices controlled by 40-6-241, whether connective or standalone, in your hand while driving. This regulation isn’t limited to the hands; lifting a device with your knee and pushing the buttons with your elbow, for example, would be equally illegal if you could manage it.


(c) While operating a motor vehicle on any highway of this state, no individual shall:

(1) Physically hold or support, with any part of his or her body a:

(A) Wireless telecommunications device, provided that such exclusion shall not prohibit the use of an earpiece, headphone device, or device worn on a wrist to conduct a voice based communication; or

(B) Stand-alone electronic device;


In order to be used legally while driving, one of these controlled devices must be mounted on the wrist or ear, or require no physical contact at all beyond a single button press.


Texting While Driving

Text-based communication is specifically forbidden while driving. This includes not just the texting app on your phone but also email, instant messaging, and any other form of digital communication that requires writing or reading.


(2) Write, send, or read any text based communication, including but not limited to a text message, instant message, e-mail, or Internet data on a wireless telecommunications device or stand-alone electronic device; provided, however, that such prohibition shall not apply to:

(A) A voice based communication which is automatically converted by such device to be sent as a message in a written form; or

(B) The use of such device for navigation of such vehicle or for global positioning system purposes;


The only text-based communications that are allowed while driving are those that are necessary for the operation of a GPS, and those that are read and transcribed by a speech-to-text program, eliminating the need for the driver to read or write behind the wheel.


Video Technology While Driving

Statute 40-6-241 also forbids watching, recording, or transmitting video of any kind while driving.


(3) Watch a video or movie on a wireless telecommunications device or stand-alone electronic device other than watching data related to the navigation of such vehicle; or

(4) Record or broadcast a video on a wireless telecommunications device or stand-alone electronic device; provided that such prohibition shall not apply to electronic devices used for the sole purpose of continuously recording or broadcasting video within or outside of the motor vehicle.


This does not include visual data from a GPS, or recordings taken by dashcams and other autonomous camera setups specifically designed for use while driving.


Safe Use of Legal Devices

Sometimes it’s not the device itself that poses a hazard, but the way someone installs or uses it. Even if a device has all the necessary functionality to be used legally on the road, it’s still illegal to use it in a way that requires more than one button press to begin or end a communication.


(d) While operating a commercial motor vehicle on any highway of this state, no individual shall:

(1) Use more than a single button on a wireless telecommunications device to initiate or terminate a voice communication; or

(2) Reach for a wireless telecommunications device or stand-alone electronic device in such a manner that requires the driver to no longer be:

(A) In a seated driving position; or

(B) Properly restrained by a safety belt.


It’s also illegal to remove your seatbelt or leave a safe position in the driver’s seat in order to operate a device.


Consequences of Electronics Use While Driving

Under Georgia traffic law, the consequences of violating 40-6-241 are $50 for a first offense within a two-year period, $100 for a second offense, and $150 for a third, but these fines can stack up faster than one might expect, because each violation of the statute counts as a separate offense, even if they’re all committed at the same time. Each offense can also put a misdemeanor conviction on your criminal record.


(e) Each violation of this Code section shall constitute a separate offense.


(1) Except as provided for in paragraph (2) of this subsection, any person convicted of violating this Code section shall be guilty of a misdemeanor which shall be punished as follows:

(A) For a first conviction with no conviction of and no plea of nolo contendere accepted to a charge of violating this Code section within the previous 24 month period of time, as measured from the dates any previous convictions were obtained or pleas of nolo contendere were accepted to the date the current conviction is obtained or plea of nolo contendere is accepted, a fine of not more than $50.00, but the provisions of Chapter 11 of Title 17 and any other provision of law to the contrary notwithstanding, the costs of such prosecution shall not be taxed nor shall any additional penalty, fee, or surcharge to a fine for such offense be assessed against a person for conviction thereof;

(B) For a second conviction within a 24 month period of time, as measured from the dates any previous convictions were obtained or pleas of nolo contendere were accepted to the date the current conviction is obtained or plea of nolo contendere is accepted, a fine of not more than $100.00, but the provisions of Chapter 11 of Title 17 and any other provision of law to the contrary notwithstanding, the costs of such prosecution shall not be taxed nor shall any additional penalty, fee, or surcharge to a fine for such offense be assessed against a person for conviction thereof; or

(C) For a third or subsequent conviction within a 24 month period of time, as measured from the dates any previous convictions were obtained or pleas of nolo contendere were accepted to the date the current conviction is obtained or plea of nolo contendere is accepted, a fine of not more than $150.00, but the provisions of Chapter 11 of Title 17 and any other provision of law to the contrary notwithstanding, the costs of such prosecution shall not be taxed nor shall any additional penalty, fee, or surcharge to a fine for such offense be assessed against a person for conviction thereof.


If a person with a clean record commits a single violation involving the use of a handheld device, they can acquire a hands-free system and present it to the court to show their commitment to safe usage in the future, in exchange for one-time leniency.


(2) Any person appearing before a court for a first charge of violating paragraph (1) of subsection (c) of this Code section who produces in court a device or proof of purchase of such device that would allow such person to comply with such paragraph in the future shall not be guilty of such offense. The court shall require the person to affirm that they have not previously utilized the privilege under this paragraph.


However, the penalties laid out in the text of 40-6-241 do not account for the possible civil consequences of an accident. If a driver harms another person in the course of violating the statute, that driver is responsible for the damages, which are likely to be much more costly than traffic court fines.



As noted above, statute 40-6-241 does not apply to utility workers responding to an emergency. The same also goes for more traditional emergency response personnel, like police officers, paramedics, and firefighters.


Civilians are also exempt from this statute while they are legally parked, and when making a call to report a crime or an emergency.


(g) Subsections (c) and (d) of this Code section shall not apply when the prohibited conduct occurred:

(1) While reporting a traffic accident, medical emergency, fire, an actual or potential criminal or delinquent act, or road condition which causes an immediate and serious traffic or safety hazard;

(2) By an employee or contractor of a utility services provider acting within the scope of his or her employment while responding to a utility emergency;

(3) By a law enforcement officer, firefighter, emergency medical services personnel, ambulance driver, or other similarly employed public safety first responder during the performance of his or her official duties; or

(4) While in a motor vehicle which is lawfully parked.


Of course, if you need to make an emergency call and already have a hands-free system in place, it’s always safer to use it than to go handheld, even though the law permits either method.


What Damages Can You Recover After an Accident with a Driver Who Was Using Electronics Illegally?

A driver who causes an accident due to illegal, distracting electronics usage is liable for the results under negligence per se. If you’ve been injured by such a driver, the settlement you’re entitled to will be determined according to the special damages and general damages sustained.


Special Damages Are Damages to Your Finances

A serious traffic accident can take a toll on your family’s financial security, both immediately and over the course of a lifetime. In the short term, you might be facing bills for an ambulance ride or ER visit, the cost of a replacement vehicle, and a light paycheck or two from missing hours at work. In the long term, you might need ongoing medical care, or face reduced earning power and lost career opportunities. An ideal special damages settlement should take all of these expenses, present and future, into account. However, in order to win such a settlement, you’ll need thorough documentation of each expense, proof that the expenses were directly or proximately caused by the distracted driver, and a good lawyer to explain the probable future impact of your injuries. To learn more about direct and proximate cause, and how the Wetherington Law Firm can help with this process, click here.


General Damages Are Non-Financial Damages to Your Quality of Life

Time spent in recovery instead of at work impacts more than just your bank account. Treatment and rehabilitation also involves pain, worry, and frustration, and being pulled away from a productive daily routine can lead to stress, anxiety, depression, and feelings of aimlessness. Plus, injuries don’t just pull you away from work. Chances are you’re missing out on your favorite hobbies and activities with loved ones, too. Even if your recovery is relatively fast, the few moments of the accident itself can lead to PTSD and other psychological scars. These are the kinds of considerations that go into calculating a general damages settlement. There’s no standard exchange rate for the missing pieces of your way of life, however, so it’s even more important to have an experienced lawyer on your side when pursuing general damages.


What If the Distracted Driver Has Killed Someone?

If the accident cost you a loved one, your case is one of wrongful death rather than personal injury. The Wetherington Law Firm can help you find justice for the one you’ve lost, but the rules in this kind of case are a bit different. You can learn more about wrongful death and the process surrounding it here.


Why Do I Need a Lawyer?

In addition to helping you make your case for the full settlement you deserve, a lawyer also serves as a buffer between you and the insurance company representatives who will inevitably be involved in the proceedings. One of the main purposes of car insurance is to cover any liability the policy holder may incur toward others on the road. This means your primary source of compensation won’t be the distracted driver themselves but the distracted driver’s insurance provider. Unfortunately, even though covering the policyholder’s liability is exactly what insurance companies get paid for, most companies seek to increase their profit margins by paying out less than thy owe — less than you need to cover your losses. They maintain entire legal departments to help them do this by exploiting loopholes and laying verbal traps for innocent accident survivors. The Wetherington Law Firm knows the legal terrain as well as these corporate legal departments do, and we can help you steer clear of any pitfalls that could ruin your case.


How to Hire the Best Car Wreck Lawyers in Atlanta

Accident survivors often find themselves in the unfair position of having to gamble on their level of legal assistance, gauging how much help they can afford right now against how much difference they expect it to make in their final settlement. Survivors with quality representation typically receive much more in compensation than those who go without representation, but most can’t afford to invest in help.


With the Wetherington Law Firm, you don’t have to gamble. We work on contingency, which means we only get paid when and if we win. Once we take you on as a client, we’ll fight for you for as long as it takes, without charging any hourly or upfront fees. We’ll never, ever charge more than we win for you, and most clients end up taking home significantly more than they would have by taking on an insurance company alone.


To get started with a free consultation on the details of your case, just give us a call at 404-888-4444 or use the contact form on the right.

The Wetherington Law Firm Supports Clients Who Want to Change the World

If you’re looking for more than financial compensation, you’ve come to the right place. The Wetherington Law Firm is passionate and experienced in leveraging our clients’ cases to effect lasting change. For example, if the driver who hurt you was using a device marketed as “hands-free” that is needlessly distracting and complicated to use, we’ll look into the need for a product recall, redesign, or relabeling. We love working with clients who want to protect others from suffering the same misfortunes, and we’ve already helped resolve many underlying problems that led to our clients’ accidents. To learn more about our work supporting positive change, just reach out and ask!









Have you or a loved one been injured by a distracted driver?

The Wetherington Law Firm works on a contingency basis. That means we don’t accept a cent in payment until and unless we win. Our job is to secure your financial future against the potential ruin that a car accident represents, and we know we can’t do that by adding to your financial burdens at one of the most difficult and precarious moments of your life.