Having someone tailgate you – following closely behind you while you are driving – can be stressful. Some drivers will pull over and allow the tailgating vehicle to pass. Others will speed up. Another option—tapping on your brakes (the classic “brake check” move) may be tempting. In this article we will discuss why teaching another driver a lesson, by “brake checking”, should be avoided. 

One thing to keep in mind: you never know who you may be sharing the road with or to what extent they may act out aggressively. They could be having a very bad day, or even driving under the influence of prescription medications, alcohol, or drugs. They may also be driving without insurance, which could be a complicated financial situation if they cause an accident. 


Is it illegal to brake test someone in California?

You may think that a “brake check” would startle the driver, make them realize how close they were to you, and cause them to increase their following distance. However, this microaggression can be an act of road rage itself—and the California Highway Patrol (CPH) advises against it. It could cause a rear-end accident or multi-vehicle pileup. Or, it could spark a retaliatory road rage incident. Although the following driver is usually at fault for a rear-end accident, if you slam on your brakes causing the other driver to hit you, you may be determined to be responsible. 


Who is at fault for brake checking?

If your own reckless actions contributed to an accident happening, your financial recovery will be reduced by your degree of fault. For example, if you were 40% responsible for an accident, the amount of compensation that you would have received will be reduced by 40%. If you are 100% at fault for an accident, you may not be able to recover any compensation for an accident, no matter how badly you were injured.


What is the 3-second rule in driving? 

Whether you are flying a plane or driving a car, the faster you are going, the longer it will take you to stop, and the more distance you’ll need to stop. Your reaction time will be added to your braking distance.  The 3-second rule simply means you should try to maintain a 3-second following distance to ensure you aren’t tailgating. This is covered in the CA Driver Handbook.  You can easily approximate a 3-second following distance by watching a vehicle pass any fixed object – such as a callbox or a sign, and then count “one-thousand-one, one-thousand- two, one-thousand-three.” Having at least a few seconds cushion will allow you to react and slow your vehicle quickly if you need to, without swerving or slamming on the brakes. This distance should be increased when it is raining. You should also be mindful of the types of vehicles you follow. Give motorcycles, fire trucks, ambulances, and heavily loaded flatbed trucks extra following distance.


Three Reasons Why You Should Not Brake Check

#1 ‘Brake checking’ is illegal – and you could face criminal charges 

There are two laws that could apply to a brake check:

Vehicle Code 22109 states that “no person shall stop or suddenly decrease the speed of a vehicle on a highway without first giving an appropriate signal.” 

An act of brake checking could also be deemed “reckless driving” in California- a misdemeanor. Vehicle Code 23103 VC states that “a person who drives a vehicle upon a highway in willful or wanton disregard for the safety of persons or property is guilty of reckless driving.” Willful or wanton disregard can refer to intentional actions, or in some cases, utter indifference to or conscious disregard for the safety of others or property.


#2 You put yourself, your own passengers, and others on the road at risk

If a driver is closely following you and rear-ends you suddenly, you and others in your vehicle could be injured. Brake check accidents can leave you vulnerable to additional injury. If a collision causes your vehicle to be disabled, another vehicle could come along and hit you, causing further injury or death. 


#3 Potential retaliation could put you at risk

A retaliatory act that results in harm to you is illegal could very easily lead to criminal charges for the driver. Road rage incidents can be terrifying. Some incidents have included: 


What To Do if Someone is Tailgating You 

When you “brake check” someone, you are operating your own vehicle in an unpredictable manner. Although this action can be directed at one vehicle, it can have a ripple effect as multiple other drivers are forced to hit their brakes and react quickly. You have a number of options to deal with a tailgating driver:

  1. Remain calm. Do not allow a stranger on the road to get you agitated to the point that you cannot focus on driving and operate your vehicle safely. Avoid long horn honks or making obscene gestures. 
  2. Consider getting out of the way. If the road you are on has a safe place to do so, pull over to let the driver pass you. This is peaceful deconfliction and allows you to go on with your day without any further interaction. 
  3. Contact law enforcement. If someone is following you in a harassing manner, such as following every turn you make, or waving a weapon at you, pulling over may not be an option. Call 911 or drive directly to the nearest police station. 


Contact an Experienced Orange County Car Accident Attorney 

Have you been injured in a rear-end accident due to the negligence of another party? Consult with an expert Orange County personal injury lawyer to protect your legal rights. The car accident attorneys at the Law Offices of Samer Habbas & Associates aggressively advocate for our client’s rights to fair compensation for medical expenses, lost earnings, and pain and suffering. If you have been in an accident caused by an aggressive driver, you may be entitled to compensation. 

With multiple offices located in Irvine, Anaheim, Los Angeles, El Segundo, Riverside and San Diego, our personal injury lawyers represent injured car accident victims across Southern California. For more information or to schedule a complimentary consultation with an expert Orange County car accident attorney, please call 949-727-9300.

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