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 talking on or otherwise 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/she always wants to know IF and HOW we can figure it out. The good news is, it is definitely possible to discover whether an at-fault driver was using a phone at the time of a collision. However, the bad news is, it may not be quite as simple as one might expect. That’s why you should get in touch with the Tallahassee Car Accident Lawyers at Nonni Homola today so that we can help you with your car accident claim.
How do I Get a Record that the Other Driver was on Their Phone?
Sometimes the investigating officer of a motor vehicle collision will make mention in the Florida Crash Report that the at-fault driver was utilizing and/or looking at his/her phone at the time of the collision. Slam dunk, right? Not so much. 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 a court proceeding. Additionally, the Florida Crash Report that is generated by the investigating officer is also inadmissible in a court proceeding. I’ve actually had cases where the officer puts in the crash report that the at-fault driver was distracted by his/her phone at the time of the collision and then testify under oath that they were NOT using the phone at the time of the collision. Unfortunately, those statements made to the officer are not admissible in a court proceeding, even in attempting to impeach the at-fault driver. (Sidenote: if my client happens to overhear the at-fault driver tell the investigating officer he/she was distracted by the phone at the time of the collision, my client CAN testify regarding what was overheard).
What’s the Best Way to Determine if Someone was on Their Phone?
The best way to conclusively determine whether an individual was utilizing his/her cell phone at the time of the collision is to subpoena the phone records from that individual’s cell phone service provider. 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 last best pre-suit settlement offer from an insurance company. The attorneys at Nonni Homola WILL file lawsuits and will aggressively pursue the acquisition of cell phone records in cases where there is an allegation a phone was involved. As soon as it is determined who the cell phone service provider is for the at-fault driver, an attorney is able to send a non-party subpoena to the cell phone service provider. The subpoena is a court order which requires the service provider produce the documentation requested by the attorney. Of course, attorneys for the at-fault party and sometimes attorneys for the service providers can make this process more difficult. Nonetheless, the records are nearly always secured by our attorneys when they are requested.
What Happens After the Record is Obtained?
Once the records are obtained, they are examined and the at-fault party is questioned in his/her 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. However, most often the information is easy to understand and the use of 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 for 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 one of our attorneys today.
Mark continued his studies at Florida State University College of Law, graduating cum laude in 2008. While in law school, Mark was a member of the Journal of Land Use & Environmental Law and the Journal of Transnational Law & Policy, as well as a certified legal intern with the FSU Public Interest Law Center, where he assisted low-income clients with a wide range of family law issues. He also served as a law clerk intern to The Honorable L. Clayton Roberts of Florida’s First District Court of Appeal.
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