Your Smartphone Can Be Evidence in a Car Accident

If there’s reason to believe it played a part, devices may make or break your case

Think no one is watching when you’re alone in your car texting? Think again. If you’re lucky and nothing happens during the time you had your eyes off the road, then you dodged a bullet. It only takes a second of looking at your phone to cause a crash. And if you do get into an accident—either because you were distracted or because you were hit by someone who was—it’s a good bet that the smartphone is going to be part of the case.

“If I have a good-faith basis to suspect that a driver was texting someone when the accident occurred, I can file a request to get the phone to inspect it,” says Steven Vinick, a personal injury and criminal defense attorney at Joseph, Greenwald & Laake in Greenbelt. “A good faith basis can mean there might be a phone next to them after the accident, or you saw them looking down right before the accident, or you could tell they were holding a phone in one hand. It could also be that they veered off the road, or crossed a double yellow line; you may not even see the actual phone.”

Nationwide, distracted driving now leads drunk or impaired driving as the leading cause of car accidents. A whopping 59 percent of all crashes have some distracting behavior immediately preceding it. In 2015, nearly 3500 people were killed and 400,000 injured in accidents caused by distracted driving.

Cellphone Evidence

Because so many car accidents involve people using their phones while driving, the phone itself has become a key piece of evidence in personal injury litigation. Cobbling together both phone records and text history, attorneys can track whether someone was sending or receiving a call or text at the time of an accident.

“If they were distracted because of an app, like Facebook, that may be more difficult to prove if there’s no time stamp,” Vinick says. “Phone company records don’t have the actual texts, but they will have a record that this phone received a text at this time, and you can use this to show they were distracted. It only takes one second to lose control, to go too fast, to not be able to avoid something that would have easily been avoided. Even hands-free, a text would still be distraction.”

Where the evidence shows that a driver was on their phone immediately prior to a crash, in Maryland, that is not does not result in an automatic finding of negligence. “Maryland does not have negligence per se, but considers it evidence of negligence,” says Vinick. “Distracted driving is a violation of statute—you have the requirement to pay full attention to your driving when you are behind the wheel.”

The Penalties

If you are found to have been on your phone at the time of an accident, Maryland law requires an automatic three points on your driver’s license, as well as a fine. In a civil action, unless the other driver is shown to have also been negligent, you would likely be liable for damages.

And if you think you can delete data from your phone to dodge liability, think again. “If I can show that phone data has been altered—for example, texts in the phone records that aren’t on the phone—I can get an instruction telling the jury to infer that evidence would have been favorable to my client,” Vinick says.

If you get into an accident that appears to have been distraction related (whether you or the other driver), talk to an experienced and reputable attorney immediately.

“People tend to think, ‘Oh, I’m not drunk; it’s not a big deal if I do this. Or, ‘I’m not texting, I’m checking my texts,’” Vinick adds. “It’s the same thing. Because once your eyes have left the road, by definition, you are now a distracted driver. That’s how I present it to the jury.”

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