Legally reviewed by:
Daniel Smith November 4, 2024
Unfortunately, aggressive driving or road rage is quite common in the U.S. In 2019, data from the AAA Foundation for Traffic Safety showed that almost 80% of American drivers expressed anger or road rage behind the wheel over the past 30 days.
A Forbes Advisor report from 2024 also establishes that the prevalence of road rage differs across state lines. According to the report, California drivers are the most aggressive, with a significant percentage of its drivers reporting that someone had yelled insults, tailgated them, or blocked them from changing lanes – all of which are ways to express road rage.
Another common way to express road rage is brake checking; however, it is also hazardous because it can lead to accidents. In this article, we discuss a brake check, who is at fault in accidents caused by brake checks, and what you should do if you're ever in an accident like that.
What Is a Brake Check?
Originally, brake checks were a routine safety measure to test the effectiveness of a car's brakes. The purpose of these checks was to ensure a car could stop as it should. Back then, law enforcement officers would carry out brake checks by accelerating and then monitoring how long it took for a car to come to a complete stop.
So, hypothetically, if a car takes 6 feet to stop at 70mph, it will pass the brake check. But if the car requires 7 or 8 feet to stop, the brakes will be deemed unsafe for use.
However, brake checks have taken on a different, more aggressive meaning today.
Aggressive Brake Checking
Aggressive brake checking is a practice where a driver suddenly slams their brakes in front of another driver. Drivers who do this intend to annoy or frighten the driver behind them, hoping to force the driver behind to crash into them or swerve and crash into something else on the road.
This practice is a form of road rage, and accidents caused by brake checking can cause serious injuries. According to the law of most states, brake checking is also illegal.
For example, Florida’s Fla. Stat. § 316.155(3) makes it illegal to stop or suddenly decrease a vehicle's speed without appropriately signaling to the driver behind. New Hampshire’s N.H. Rev. Stat. Ann. § 265:45 and Ohio’s Rev. Code § 4511.39 contain similar provisions.
Even where state law doesn't directly prohibit the sudden stopping of vehicles without providing an appropriate warning, brake checking is still deemed aggressive or reckless driving, and all states have provisions that prohibit that.
Tailgating vs. Brake Checking
Most drivers who brake check do so to stop or scare away another tailgating driver. Tailgating is following the vehicle ahead too closely, and aggressive tailgating is also a form of road rage.
In these situations, if driver B follows driver A too closely, driver A might choose to stop suddenly, causing driver B to crash into driver A. Driver A will then claim that driver B rear-ended them and seek compensation from driver B.
Being aware of the likely implications, some drivers stop tailgating after they are brake-checked. Especially since tailgating is generally an unsafe practice that makes it difficult for following drivers to react safely.
It is no surprise that almost all states have laws prohibiting tailgating. New York’s N.Y. V.T. Law § 1129 prevents drivers from following another vehicle more closely than is reasonable or prudent, considering the speed, traffic, and condition of the highway.
Similar provisions are contained in Oregon’s Or. Rev. Stat § 811.485, where tailgating could attract a $355 fine, Texas’ Tex. Transp. Code § 545.062, a violation that could attract up to $500 in fines, and Wisconsin's Wis. Stat. § 364.14(1m).
How Common Are Brake Check Accidents?
It is difficult to estimate the number of accidents that can be attributed to brake checking. However, according to the Insurance Information Institute, operating vehicles in an erratic, reckless, or negligent manner accounted for 2,251 fatal accidents in 2022.
Who Is At Fault In A Brake Check Accident?
If one driver's brake-checking directly causes an accident, that driver will be liable for the damages arising from that accident. As we've established earlier, brake checking while driving in traffic is prohibited in most states and qualifies as aggressive or reckless driving that endangers other road users.
However, that brake-checking driver may not be entirely liable in certain situations, particularly when another driver has been aggressively tailgating them. When a brake-checking accident is caused because one driver brake checks another driver who has been tailgating them, both parties will likely be at fault.
Because brake checking and tailgating are both offenses, and both practices constitute unsafe driving, both parties will likely share the liability equally (50-50). And when liability is shared equally, neither party will be entitled to compensation under both the contributory and comparative negligence systems.
However, it is important to point out that without objective evidence like camera footage or an unbiased witness statement, it will be extremely difficult for a tailgating driver to prove that the brake-checking driver should share in the blame for the accident.
Why? Because to any investigator, a brake-checking accident will appear like a regular rear-end, where the driver behind should take all the blame.
Without objective evidence, the tailgating driver will have their word against the other driver’s. Unfortunately, words are not always enough to establish fault.
What To Do If You’re Involved In A Brake Check Accident?
If you are ever in an accident caused by brake checking, ensure you do the following:
Stop and stay calm
Immediately after the accident, stop and remain at the scene. Failing to stop after an accident makes you guilty of hit-and-run, which could be a felony or misdemeanor, depending on the circumstances.
Remaining calm is paramount because a brake-checking accident is likely to have resulted from road rage. If you begin to flare up, and the other driver responds accordingly, the situation could worsen.
If necessary, take a minute to take deep breaths and ensure you're calm before doing anything else. Do not retaliate if the other party tries to escalate.
Assess the accident
Find out if the accident caused death, injury, or only property damage. Your assessment results will determine your next steps, so check yourself, your passengers, if you have any, and the occupants of the other car.
If anyone has died or been injured, immediately call 911 or the relevant law enforcement agency in your city. The law of most states requires this, and one example is Rhode Island’s 31 R.I. Gen. Laws § 31-26-3.2, which requires drivers to give the quickest means of communication notice of an accident that has caused injury or death to the police.
While waiting for the police, you can offer first aid to an injured victim if you are confident that you know how. Providing aid when you can is also a legally required duty.
If the accident caused only property damage, you need to determine if the vehicles involved can still be moved safely. If they can, most state law requires that they be moved to the nearest safest place where they won't obstruct free-flowing traffic (examples of this provision in state law include California’s Cal. Veh. Code. § 20002 and Missouri’s Mo. Rev. Stat. § 304.151).
Note that depending on the level of property damage, you may still have to report it to the police or DMV, albeit not immediately. For instance, even though Rhode Island law only requires accidents that have caused death or injury to be reported to the police, accidents resulting in over $1,000 of property damage must be reported to the DMV within 21 days, according to 31 R.I. Gen. Laws § 31-26-6.
Collect evidence
We've spoken about how important it is to have objective evidence in a brake check accident. It is important to begin collecting every piece of evidence immediately after the accident.
First, take pictures and videos of the accident. Record the damage to your car, the damage to the other person's car, and anything you believe will support your version of events.
You should then try to obtain objective evidence by talking to third-party eyewitnesses. As much as possible, try to get a signed statement from them detailing what they witnessed or record a video of them explaining what they saw, as long as they do not mind.
With eyewitnesses, also endeavor to collect their contact information, such as their names, addresses, and phone numbers. You may need them to repeat their testimony later.
Whether you find eyewitnesses or not, also scan the area to determine if any CCTV cameras caught the accident.
If you see cameras that caught it, but they belong to a private organization, begin making arrangements to acquire that footage; but if the cameras that you believe caught the accident are public, tell law enforcement that you think that camera has recorded vital evidence.
Exchange information
If the other driver is not incapacitated due to the accident, you should exchange necessary information with them. While there is no specific list of what you should or should not share, you should share anything they request as long as it is relevant to the accident and can help them identify you, whether with law enforcement or your insurer.
As a guide, however, the information you should request must include their name, contact or address, vehicle registration number, and insurer information like their insurer name, address, and policy number. You can also request to see their driver's license so you can confirm the information they give you.
Seek medical attention
To ensure you haven't picked up any hidden or internal injuries, it is best practice to have a medical checkup as soon as possible after the accident. Accident injuries are notorious for becoming pronounced days or weeks after the accident because, in the moment, your body releases a lot of adrenaline that may numb any pain you ought to feel.
Consult a car accident lawyer
Regardless of your role in the accident and the amount of evidence you believe you have, it is pertinent that you speak to a car accident lawyer. Determining fault in a brake check accident can be tricky because the apparent evidence does not always represent the truth.
To ensure that you do not get unfairly saddled with liability for an accident, speak to a skilled car accident lawyer who can help with further investigating the accident and negotiating with insurance companies that may want to portray an inaccurate representation of events.
Notify your insurer
As part of your policy, most automobile insurers require you to notify them within a specific period if you have been in an accident. This requirement is to allow your insurer enough time to investigate the accident in preparation for a claim against you.
Although uncommon, some insurance policies may deny coverage for an accident you fail to notify your insurer of. Therefore, it is crucial to inform your insurer as soon as possible.
However, you must also be a bit careful when notifying your insurer. They will want to ascertain the damages you have suffered from the accident, so they will inquire about your injuries or the extent of property damage.
Do not provide them with definite answers to their questions at the time you notify them.
How the Accident Helpers Can Help You
At The Accident Helpers, we can help you secure legal representation that will ease most of the challenges associated with brake-checking accidents.
A brake check accident can be very devastating, especially when it is being made to seem like you are wholly responsible for the accident when that is not true. Thankfully, a skilled lawyer can help unearth evidence to turn the situation in your favor.
But where do you find such skilled lawyers? That’s where we come in. through our national network of car accident lawyers, we can help you connect you to lawyers in your city who have successfully represented other victims in your position.
All you have to do is contact us to schedule a consultation, and once we get the facts of your case, we will get you the best possible options. Reach out to us today! Our services won’t cost you a dime.
