I KNOW the Other Guy was on His Phone! How do We Prove That?
“The driver that hit me was on the phone!” Time after time I hear clients emphatically claim the driver of the vehicle that hit them was using a cell phone. Sometimes the client actually sees the other driver on the phone, other times the client simply assumes the other driver was on the phone as they cannot fathom how another driver could possibly slam into the rear of their car at 55 mph without being distracted by a phone. Regardless of why the client believes the other driver was on a phone, he always wants to know IF and HOW we can figure it out. The good news is, it is possible to discover whether an at-fault driver was using a phone at the time of a collision. However, the bad news is that it might not be quite as simple as one might expect.
Sometimes the investigating officer of a motor vehicle collision will mention in the Florida Crash Report that the at-fault driver was utilizing and/or looking at his phone at the time of the collision. Slam dunk, right? Not necessarily. Unfortunately, any statements made to an officer by an individual involved in a traffic collision, while that officer is investigating the collision, is inadmissible in Court. Additionally, the Florida Crash Report that is generated by the investigating officer is inadmissible as well. I’ve had cases where the officer records in the crash report that the at-fault driver was distracted by his phone at the time of the collision– and then testifies under oath that the driver was NOT using the phone at the time of the collision. However, if my client happens to overhear the at-fault driver tell the investigating officer he was distracted by the phone at the time of the collision, my client CAN testify regarding what was overheard.
To conclusively determine whether an individual was using his cell phone at the time of the collision, an attorney must subpoena the phone records from that individual’s cell phone service provider. It is important to know that an attorney does not have the power to issue a subpoena until a lawsuit is filed. Unfortunately, there are numerous personal injury attorneys who are not willing to file lawsuits and will suggest accepting the latest, best pre-suit settlement offer from an insurance company. The attorneys at Barrett, Fasig & Brooks WILL file lawsuits and will aggressively pursue the acquisition of cell phone records. The subpoena is a court order which requires the service provider to produce the documentation requested by the attorney. Attorneys for the at-fault party – and sometimes attorneys for the service providers – can make this process more difficult. Nonetheless, the records are usually secured by our attorneys when they are requested.
Once the records are obtained and examined, the at-fault party is questioned in his deposition regarding the contents of the records. When attempting to determine whether the at-fault party was using a feature on the phone such as email, internet, or social media, an expert is sometimes required to decipher the information. Usually, however, the information is easy to understand and an expert is unnecessary.
New studies suggest the use of cell phones while driving is actually more dangerous than driving drunk. As a result, there is a trend among Florida courts to allow the imposition of punitive damages on drivers who have caused collisions due to cell phone use. If you or a loved one has been involved in a collision and you believe the collision was caused by a driver distracted by a cell phone, do not hesitate to call Barrett, Fasig & Brooks and speak to a lawyer today.