Can They Prove I Was Using My Phone Before the Crash?

Posted on March 2018    

Six billion text messages are sent in the U.S. every day and many are sent from inside a vehicle.

In 2010, federal guidelines prohibited federal employees and commercial vehicle drivers from texting while driving. States slowly adopted similar laws—today, 47 states enforce a primary texting ban and roughly half have a partial or primary ban on hand-held phone use.

North Carolina is no exception. The state of North Carolina enforces a primary ban on texting while driving, meaning, the law is enforced without the presence of some other traffic violation. Infractions are punishable by a fine of $100 plus court costs.

North Carolina does not currently ban hand-held cell phone use; however, drivers under the age of 18 are prohibited from using cell phones while driving. Read North Carolina’s complete definition of the law here.

Risky Behavior: It’s Hard to Hide

Texting laws have created a challenge for law enforcement: how to detect drivers who break the law. It’s hard to tell if a driver is texting or lawfully using a cell phone.

Across the country, law enforcement is developing training programs designed to improve enforcement, evidence collection, and prosecutions relating to dangerous behaviors behind the wheel.

If you think you can outsmart police with clever phone manipulation or hide the light emanating from the screen, think again. Here’s what law enforcement is really looking for:

• Nearly striking an object or vehicle
• Failure to safely maintain lane control
• Driving into opposing or crossing traffic
• Slow response to traffic signals
• Turning abruptly or illegally
• Failure to maintain consistent speed
• Failure to signal
• Intermittently looking down
• Nighttime glow of the device
• Hand to ear with device in hand

In addition to illegal cell phone use, the indicators above apply to other distracted driving behaviors.

Despite enforcement challenges, in 2016, nearly 3,000 drivers were charged with texting and driving in North Carolina. The conviction rate, however, is low (about 50 percent) due to loopholes in current legislation and poor evidence collection.

In 2015, more than 1,200 crashes in North Carolina were linked to phone use and there were 13 related fatalities.

Cell Phones and Evidence Gathering

After an accident, law enforcement moves quickly to investigate; they have an obligation to establish the cause and contributing factors of the crash.

To prove a driver crashed due to inattentive behavior, law enforcement has to find out what the driver was doing before the crash. This is achieved through evidence gathering and forensics.

Evidence can be testimonial or physical. Testimonial evidence is gathered from individuals who saw the crash or individuals who received electronic communications from the driver before the crash.

Physical evidence might include cell phones, tablets, laptops, video streaming devices, or other in-vehicle devices like an event data recorder (EDR).

The next step is lawfully seizing the evidence. To collect the data contained on a cell phone, for example, law enforcement may need a search warrant, subpoena, or other court order. Forensic downloads of cell phone information can also be obtained through similar efforts.

Cell phone records often prove useful to the prosecution. Incriminating cell phone data might include timestamps of electronic communications, social media posts, and phone call records.

Event data recorders, typically found in newer vehicles, provide detailed information about the driver’s actions—or lack thereof—leading up to a crash. EDRs record information such as speed, acceleration patterns, and braking.

If a suspect attempts to tamper or destroy evidence, such as a cell phone, that act may be admissible at trial to prove guilt.

In crashes resulting in injury or death, prosecutors may rely on expert testimony to further incriminate a driver. Examples of potential experts might include:

• Mobile device forensic examiner/analyst
• Cell phone company records representative
• Crash reconstructionist
• Crash team investigator
• Road or mechanical engineer
• Auto manufacture

For drivers who think they can outsmart the system, think again. The system clearly has a few tricks of its own. There are plenty of ways law enforcement and prosecutors can collect evidence from electronic sources and witness testimony.

All forms of distracted driving are unsafe, but cell phone use is most common and often the deadliest. Follow the law to avoid a citation or a comprehensive crash investigation.

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