Distracted-Driving Evidence: How We Get the Other Driver's Phone Records

Published March 7, 2017 · Injury Law Basics

The driver who rear-ended you at the light on Wilmington Pike told the officer he "just didn't see" you stop. He did not mention the phone in his lap, the officer did not ask, and the crash report lists no contributing factor beyond "failure to maintain assured clear distance." Weeks later, his insurer suggests you stopped suddenly. You know what happened. Proving it is a different problem, and it is one we solve in most cases where the facts are there.

Why it matters even when fault seems clear

In a rear-end collision, fault is often not seriously disputed, so why bother proving distraction? Three reasons. First, in intersection, lane-change, and pedestrian cases, fault is very much disputed, and a phone in use at the moment of impact usually ends the argument. Second, insurers value cases differently when the driver's conduct looks reckless rather than careless; a jury does too. Third, in cases with catastrophic injury or death, a driver who was texting at 55 miles per hour may face punitive damages on top of compensation. Learn more on our distracted driving page.

What Ohio law says today

Since 2013, R.C. 4511.204 has made it illegal to drive while using a handheld electronic wireless communications device to write, send, or read a text-based communication. For adult drivers it is a minor misdemeanor, and the statute bars an officer from stopping a car solely to check for a violation. That means adult texting tickets are rare, and the absence of a citation on your crash report says nothing about whether the other driver was texting. I explained the statute's limits when it passed in Ohio Bans Texting While Driving.

A ticket is not required for a civil claim anyway. The question in your case is whether the driver was negligent, and reading a text at the moment of a collision is negligence by any measure. Our job is to put the evidence in front of the adjuster, and if necessary the jury.

Step one: freeze the evidence

Phone evidence is perishable. Carriers keep call and text logs for limited periods, drivers delete things, and phones get replaced. Within days of a serious crash, we send written preservation demands to the other driver and his insurer, instructing them to preserve the phone itself, its contents, and all account records, and to the wireless carrier, identifying the number and the date and time of the crash. A party who destroys evidence after receiving that letter faces real consequences in court, and most insurers take the demand seriously.

At the same time, we preserve our own side of the clock: the 911 call-time log, the crash report, dispatch records, and, when the vehicles have them, the event data recorders that fix the moment of impact to the second. The timing is the whole case, which is why I ask every client to photograph and note everything at the scene; see Photographs and Evidence: What to Capture at a Crash Scene.

Step two: the driver's own words and witnesses

Before any subpoena, we gather what is free. Witnesses often saw a glowing screen or a head tilted down. Passengers in the other car sometimes tell the truth. The driver may have said something to the officer, to a tow operator, or to you. And drivers post. A tweet sent ninety seconds before a 911 call is evidence, which is why we review the other driver's public social media early, the same way insurers review yours; see Social Media and Your Injury Claim.

Step three: discovery after suit is filed

Carriers will not hand records to a lawyer on request, and privacy law does not let them. Once a lawsuit is filed, the Ohio Rules of Civil Procedure give us the tools.

Requests to the driver. Under Civ.R. 34, we serve the other driver with requests to produce his phone bills and account records and, in appropriate cases, to make the phone itself available for a forensic examination. Interrogatories and a deposition pin down his number, his carrier, and his story under oath before he has seen the records.

Subpoenas to the carrier. Under Civ.R. 45, we subpoena the wireless carrier for the account's call-detail and text-message logs for the window around the crash. The carrier's records do not contain the content of texts, but they show the time of every call, every text sent and received, and often data sessions, down to the second. That is all we need.

Lining up the clocks. We then match the carrier's time stamps against the 911 call, the dispatch log, and any event-data-recorder timeline. A text sent at 4:17:42 p.m. and a 911 call at 4:18:05 p.m. tells a jury exactly what the driver was doing. Where the carrier's clock and the 911 clock are set differently, an expert reconciles them.

Apps and the phone itself. Many drivers today are distracted by apps rather than texts, and carrier logs will not show a game or a video. In those cases we seek a forensic image of the phone, which can reveal screen activity, app use, and even whether the phone was unlocked at the moment of impact. Courts balance the driver's privacy against the need for the evidence, and a narrowly tailored request focused on the minutes around the crash is usually granted.

What the records look like in practice

In one type of case I see regularly, the driver swears he was "just driving." The carrier log shows a text received at the minute of the crash and a reply sent eleven seconds before the 911 call. Once that log is in the adjuster's file, the conversation about who stopped short ends, and the conversation about the value of a herniated disc begins on much better terms.

What this means for you

If you believe the driver who hit you was on the phone, say so to the officer at the scene and to your lawyer at the first meeting. Write down what you saw and what the driver said. Do not post about the crash yourself. And do not wait: every week that passes without a preservation letter is a week closer to the carrier's purge date. Distracted-driving proof is not something a victim can gather alone, and it is one of the clearest reasons to involve a lawyer early.