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Is Brake Checking Illegal?
What You Need to Know

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One of the most common reasons why rear-end collisions happen is brake checking.

If you’ve been a victim of brake checking yourself, you’re probably wondering if this is illegal and what kind of damages you can get. Schmidt & Clark lawyers have dealt with numerous brake checking accidents in our two-decades-long career.

Today we’ll use our experience in these cases to explain everything you should know about brake checking.

Summary of the Key Findings

  • Brake checking is an illegal action. It’s a common cause of rear-end accidents and can cause vehicle damage and motorist injuries.
  • You should hire an accident attorney to help you prove fault in a brake check vehicle accident. 
  • It’s a common misconception that the rear-end driver is at fault for a brake check accident. Both drivers can be partially responsible, and the law will determine what damages they have to pay.

What is Brake Checking?

Stepping on a brake Brake checking is when a driver slams on the brakes suddenly while there’s another driver behind them. This prompts the other driver to brake sharply as well.

Brake checking is seen as aggressive driving. Some people do it for fun when people they know, such as family and friends, are driving behind them.  Others want to shock the driver behind them or check tailgaters.

People also brake check to try to make the other driver slow down or avoid an accident.

A brake check is seen as a road rage incident and reckless driving. 

“Brake testing or brake checking is a phrase often heard in motorsport, but can be applied to the road, too. A brake test is when a driver ahead of you deliberately and unnecessarily brakes hard in order to force you to take evasive action or to cause you to run into the back of them. It is used in road rage incidents or when the driver in front is trying to commit insurance fraud.” Driving Tests

Often, the rear driver is the one who’s blamed for the rear-end collision, especially if they drive too close to the vehicle in front. In that case, this driver is seen as a tailgater. 

As this is aggressive driving, it can cause property damage, and personal injury, such as:

Is Brake Checking Illegal? 

Pulling the hand brake of a car with 'Prohibited sign' overlayYes, brake checking is illegal. This is negligent driving seen as road rage, and it increases the chances of being hit by the rear driver. 

According to the National Highway Transportation Safety Administration, rear-end car accidents present 29% of all car accidents, making them one of the most common vehicular incidents [1]. 

It’s also illegal to brake check a tailgater. While tailgating is annoying and unlawful, you aren’t allowed to brake-check another driver.

If you have a tailgater, you should pull over, switch lanes or maintain the speed you’re going at, and then change lanes when it’s safe. 

Also, if you have brake checked a tailgater, you’ll be held responsible for the car accident.

In case you live in a comparative fault state, you could end up paying for part of the tailgater’s damages. 

How to Prove Brake Checking

A dash cam hanging inside a car In most cases, it’s difficult to prove the other driver brake checked you. Using dash cams is your best bet to prove innocence in a rear-end accident.

If you don’t have a dash cam, consider getting one, as video footage is concrete evidence of who is the brake checking driver and thus at fault for the car accident. You can also ask for surrounding personal home cameras to check if they recorded the brake check. 

Apart from videos, get witness statements of the auto accident. See if there’s someone who agrees that the other motor vehicle suddenly stopped in front of you or that the driver had no reason to stop suddenly but still did it. 

Also, some drivers get very angry after a rear-end accident. If this happens, you can record them, as perhaps you can get an admission of guilt and win the case.

Brake checks are always done on purpose, regardless of the circumstances, so at least one of the drivers has to be at fault. 

Brake Checking Accident Claims

A crumpled back of a carFault for rear-ended car accidents is difficult to prove, but a common misconception is that it’s the fault of the rear drivers.

In fact, either driver can be the at-fault driver, especially if there was careless driving involved or an aggressive driving tactic.

For example, in a brake checked accident case, the rear driver can suffer serious injuries and property damage.

Then, this driver can sue the brake checker (the driver who was at the front) for damages. 

The law enforcement will check several factors related to a brake check claim, such as:

  • If the brake checking was intentional — For example, to commit insurance fraud.
  • If sudden braking was a threat to the other driver.
  • If the brake check caused fear, severe injuries, and property damage to the other driver.

Insurance companies often try to reject liability for the car accident claim, and they cite exclusion in the contract because of intentional conduct. 

For a successful personal injury case against brake checkers, you need an experienced attorney that can file a personal injury lawsuit and deal with the insurance company

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What to Do in Case of Brake Checking Accident

Woman calling for help after a collision accident

You should follow several steps in case of a brake check accident:

  • Remain calm — Try to stay calm even when faced with aggressive drivers, and don’t get into any disputes.
  • Contact law enforcement — Call 911, and in case of your or other drivers’ injuries, ask for an ambulance. 
  • Gather information — Exchange contact and insurance information with the other driver, take photos of the crash, and get witness contact information as well. 
  • Seek medical help — Even if you don’t see a serious injury, you should go to the hospital to get checked out. This way, you’ll have a copy of the medical records for the insurance claim.
  • Hire a personal injury attorney — The attorney can ask for police reports and help you gather evidence for the car accident claim. 

FAQ

What happens if you hit someone brake checking?

If you hit someone brake checking, you should check for injuries and get help from an attorney.

How do you deal with a tailgater?

The best way to deal with a tailgater when driving is to try to stay away from them. Keep the distance, and stay calm. If you can, switch lanes and get out of the way of the tailgater. 

Were You a Victim of a Brake Check?

The brake check is illegal, and it’s a common misconception that the driver in the rear is at fault. 

People brake check for several reasons, such as to avoid an animal on the road or an accident. However, there are also instances where brake checking is intentional. 

No matter the cause, you should get an experienced car accident lawyer. Schmidt & Clark law firm has dealt with countless brake check accidents, and we can help with your car accident case. 

Contact us as soon as today to schedule a consultation, and let us help you get the damages due to you. 


References:

1. https://www.nhtsa.gov/sites/nhtsa.gov/files/analyses20of20rear-end20crashes20and20near-crashes20dot20hs2081020846.pdf

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