The Law on Brake Checking: What Motorists Should Know

What Is the Legal Definition of Brake Checking?

To "brake check" is to quickly apply the brakes with no warning for the purpose of causing another vehicle to crash into the rear end of your vehicle.
When and why do drivers brake check? In many cases, this is a drivers or a group of drivers method of initiating a road rage incident. For example, if one driver feels that another is following too closely or acting aggressively in overtaking, in heavy traffic, he or she may deliberately slow down with the intention of forcing the other driver to make an aggressive move. Brake checking serves the dual purpose of getting rid of a perceived tailgater while also provoking road rage in the other driver.
In another example, a group of motorcyclists who were on a tour of the Italian Alps were driving behind a car that was behaving erratically and appeared to be lost . the car’s driver perceived the motorcyclists as aggressive, as they were following closely, but did not pass. The driver began to brake check the group, presumably to force them to make their move. The lead rider found the sudden slowdowns unnerving and, believing that the driver would eventually force them off the road out of frustration, began to try to pull away from the car in order to escape the escalating situation. While they were speeding to get away, they crashed.
In the second example, the driver was clearly at fault. In the first example, it is less clear where responsibility lies. In a brake check situation, both parties have a role to play and both are partially responsible for the outcome.

Is Brake Checking a Crime?

In assessing the legal implications of brake checking, a driver’s best defence is to have evidence proving it was not their fault. This means driving with a dashboard camera that records in front and behind their car. Most cars don’t have them, meaning a driver will have to rely on the testimony of witnesses to establish they were not at fault.
The worst thing a driver can do is mess up the scene after a brake checking accident, moving their car and making adjustments while the other driver is too angry to think properly. Anything they do under those circumstances can come back to haunt them.
The law surrounding brake checking is set out in section 162 of the Highway Traffic Act, RSO 1990 C.8, which states: "Traffic Control Devices 162 In this Part, "traffic control signal" means a device other than a traffic control stop-sign that is intended to regulate, direct or warn vehicular or pedestrian traffic. R.S.O. 1990, c. H.8, s. 162(19)."
As is clear from that definition, the one bright line rule is to proceed with caution any time a traffic control signal is ahead. This means an orange light, a stop sign, or any sort of pedestrian crossing. Drivers who don’t stop at traffic lights and who brake on yellow instead of red have also been jailed for brake checking, especially if blood alcohol levels are present.
Further, in Causarano v Tammaro, 2011 ONSC 1348, the court held that intentional brake checking at low speeds may be seen as negligent driving: "intentionally brake check to make sure that Francesca [the defendant’s] son could not pass her vehicle without stopping was an "intentional act". The fact that the parties’ vehicles were going very slowly at the time of the collision would not mean that Francesca was not negligent however. Ultimately, the question is whether it was reasonably foreseeable in the circumstances that Francesca’s actions could cause Francesca’s son to suffer harm. In my view, Francesca’s actions in intentionally brake checking to ensure that Alessio could not pass Francesca’s vehicle without stopping was negligent. There would be no reason to believe that braking in a slow-motion collision could result in significant injury. However, the conduct of reaching for and turning off the cigarette lighter from the ignition represents an unexpected level of consequence for the usual risk involved in the conduct. While it may be prudent and reasonable to turn off the cigarette lighter if it is in the way of the driver or creates a potential for fire, failing to do so also represents a voluntary choice to accept the potential for harm from using the cigarette lighter. The accused could have placed his right hand on the center console so as not to be in position to turn off the cigarette lighter… There is no evidence of the time taken by the accused to turn off the cigarette lighter or if he turned it off at all. This raises an inference that the action occurred shortly after the collision and was intentional. I am aware of no evidence that turning off the cigarette lighter was urgent or that it diverted the accused’s attention from the road or the other vehicle. The accused’s evidence is that he turned his head to the right after the impact and before braking. The accused testified that he was aware of a problem at the ignition. Therefore, I am satisfied that the accused’s act of turning off the cigarette lighter was intentional and within his control… I have concluded that the accused was negligent when he turned off the cigarette lighter because of the potential risks and consequences associated with not having his right hand on the steering wheel. At the time of the collision, Francesca was distracted, in control of the vehicle, and was braking and losing her left arm. Therefore, the action of turning off the cigarette lighter was connected to and involved the same risk and harm as the general activity of driving and operating his vehicle. I am satisfied beyond a reasonable doubt that the accused made a voluntary and intentional choice to accept the potential for harm in a relatively low-risk situation." (emphasis added in bold).
While drivers looking to take the blame in their lawyers’ office don’t want to hear it, a lengthy court case involving permanent disability and death could leave them footing the bill.

Traffic Rules Regarding Brake Checking

Across the country, there are a variety of traffic laws that govern the practice known as brake checking. Brake checking refers to slamming on your brakes without warning in a way that would catch most other drivers by surprise. The danger from brake checking comes from having other drivers who are not prepared for the unexpected reduce their speed in a sudden manner, potentially causing them to lose control of their own vehicles. In some mild cases, brake checking may be covered under laws against following too closely or tailgating. However, brake checking can be tricky to prove, as the fact that brake lights are engaged is not alone an indicator that a driver is fully at fault. This section will help explain various brake checking traffic laws.
Depending on the circumstances, multiple drivers may find themselves at fault after a brake checking incident. Some drivers may find that they are the victim seeking recovery while others may find themselves the subject of an insurance claim. The legality may vary between states and judicial jurisdiction. The aim of states in passing brake checking laws is to reduce rear-end collisions. Even if a driver may be mostly at fault for a rear-end collision, the other driver may be mostly to blame if it can be shown that they engaged in brake checking. In some cases, such as State Farm Mutual Automobile Insurance Company v. Fadila M. Attia, State Farm argued that Attia was at fault for engaging in brake checking on account of her unwanted stopping after defendants surprised her by brushing her car. In the event that a plaintiff suffers damage on account of engaging in brake checking, the plaintiff may engage and advance a claim for rear-ending another car.
Some states have distinct laws prohibiting brake checking. The state of Connecticut prohibits engaging in brake checking when a driver first applies the brakes in response to the normal driving conditions ahead. Massachusetts law recognizes that upon observing an aggressive driver, a driver may take "reasonable steps" to avoid harm. Such steps include driving away or pulling off the side of the road. The key term is "reasonable," as legal courts have stated in Nicholas v. A.O. Smith Corp. that whether an action is reasonable is normally a factual issue reserved for the jury. If the brake checking driver engages in excessively aggressive and unreasonable conduct in the eyes of a jury, the defendant may be able to advance a successful claim for damages.

Risks of Brake Checking and Roadway Safety

While some may think that brake checking is an innocent act of clearing the tailgater, it is a harmful and reckless driving behavior that can have serious repercussions. Simply slamming on the brakes of a moving vehicle may cause other drivers to crash into you and cause a chain reaction that has disastrous consequences. The severity of these accidents can be even worse when larger vehicles are involved. If a truck driver is following too closely and brake checks the driver in front of him, the truck coming up behind the rear driver will not be able to avoid the wreck. Because of their massive size, large trucks must be given more space and distance than other vehicles on the road. Additionally, when the brakes of a car, SUV or light trucks are suddenly pressed without warning, not only can they not stop in time, but the violent abrupt stop can cause passengers and drivers to jerk forward and injure their necks, backs and heads. The sudden stop can be felt in passengers as well as drivers and may result in the need for medical treatment, physical therapy and pain management.

Defensive Driving Strategies to Avoid Brake Checking Crashes

When approaching another vehicle from behind, be sure to maintain a safe following distance. The best way to avoid being a brake checking victim is to manage your speed and your following distance so that there is no temptation for another driver to suddenly engage their brake to teach you a lesson. Use of rear end sensors and alarms will allow you to have almost an immediate audio alarm whenever something occurs in front of your vehicle. If you do get too close, the sensor will lead to an immediate loud noise, giving you warning to engage your brake. Moreover , it also allows you to keep a safe enough distance so that a sudden stop by the car in front of you will allow you to safely stop in time to avoid a rear-end collision. The rear-end scanners will also allow you to have more control over your vehicle by providing you with the ability to lessen or engage the pressure on the accelerator to reduce the amount of acceleration that might occur with your vehicle, if the vehicle in front of you applies its brakes suddenly, causing you to do the same.
Managing your speed is important, because at some point, the disparity between the vehicles speeds becomes such that in all likelihood there will be an injury or collision to occur because of the speed differentials. To the extent that you can control your speed and stay within the speed limit, you may avoid being brought into the world of brake checking, whether intentional or unintentional.

What to Do When Brake Checking Happens to You

Should you ever find yourself the victim of a brake check, there are specific steps to take for your personal safety and to help identify the offending driver.
Stay Calm and Composed
If another driver brakes in front of you, try to stay calm. Pull over to the side of the road, and take a few minutes to calm yourself if necessary. It is important that you do not lose control of your emotions and retaliate against the other driver.
Document the Incident
Take down as much information as you can about the driver that brake checked you. If you have a smartphone, stop and pull it out to use a voice-recording app. Name the other driver’s vehicle, its make, model and color. Take note of their license plate number. If the brake check occurs on a freeway or highway, note the lane you’re in and how many lanes are in total. Keep track of the mile marker you are just passing (and future mile markers if you are brave enough). All of this information will be valuable when filing a complaint with the police.
If possible, use your smartphone to snap a photo of the driver, vehicle, and damage they caused. Use your voice recorder to describe how they almost caused an accident. Make sure the date and time are displayed on your smartphone.
File a Report
If the brake check caused any injury or financial loss, file a police report immediately. Authorities may not be able to act on emotionally charged incidents, but an innocent victim typically gets much more attention. If you cannot file a police report, contact your state’s department of motor vehicles. Many states have a process for logging aggressive driving complaints.

Legal Options for Brake Checking Victims

If you are a victim of a brake checking incident, you need to contact an experience lawyer to help protect your rights. Brake checking is never legal, and one party will be legally liable for injuries that sustained in a crash that is the result of brake checking. Fault will be assigned to the brake check party even if the second driver was also speeding, intoxicated, or otherwise driving dangerously.
If you feel and have evidence that you were not at fault in an accident caused by brake checking, you can file a claim with your insurance company to recover your losses from the accident. Your insurer can then use its investigative powers to obtain information about the accident and help you receive compensation for your damages.
You may choose to pursue legal action against the other driver or the auto insurance company of the other driver depending on the statute of limitations in your state . This time limit usually ranges from one to six years, depending on the type of claim and where the claim occurred. Generally, auto accident claims in Pennsylvania must be filed within two years from the date of the accident. Failure to file a lawsuit within the jurisdiction’s appropriate statute of limitations may result in complete loss of your ability to recover compensation for your injuries, including compensation for expenses from the crash, such as vehicle damage and medical bills.
Filing a lawsuit can help protect your right to seek additional compensation available under the law. An experienced car accident attorney can help you prepare, file, and argue your case in court so you can be sure to maximize your chances of receiving full compensation for the injuries and damages you suffered because of the crash.