Your Smartphone Can Be Evidence in a Car Accident

Use these links to jump to different sections:

• When Your Phone Can Be Inspected After a Car Accident
• How Cellphone Evidence Is Used in Car Accident Cases
• Penalties for Using Your Phone at the Time of a Car Accident
• Find an Experienced Car Accident Lawyer

Think no one is watching when you’re alone in your motor vehicle sending a text message? Think again. If you’re lucky and nothing happens while 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 car crash.

And if you do get into an auto accident—either because you were distracted or hit by someone who was—it’s a good bet that the smartphone will be part of the case.

When Your Phone Can Be Inspected After a Car Accident

“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 criminal defense and personal injury attorney in Rockville, Maryland.

And what is a good faith basis? “[It] 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,” says Vinick. “It could also be that they veered off the road or crossed a double yellow line—you may not even see the actual phone.”

How Cellphone Evidence Is Used in Car Accident Cases

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. By combining cellphone 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 a social media app like Facebook, that might 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 a distraction.”

Where the evidence shows that a motorist was on their phone immediately prior to the time of the crash, that doesn’t necessarily result in an automatic finding of negligence. “Maryland, for example, 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.”

Penalties for Using Your Phone at the Time of a Car Accident

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.

Find an Experienced Car Accident Lawyer

If you get into an accident that appears to have been distraction-related (whether you or the other driver), talk to an experienced personal injury attorney immediately. Many car accident attorneys offer free consultations.

“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.”

For more information on this area of law, see our overviews of personal injury claims and car accident claims.