Prove Texting and Driving: How Can I Prove the Other Driver Was Texting at the Time of the Wreck?

There are thousands of rear-end collisions on South Carolina's roadways each year. Often times, the person who has been injured knows intuitively that the at-fault driver was distracted - most likely by a cell phone. In fact, in 2017, nearly 10,000 South Carolina car accidents were caused by distracted drivers. But how can you prove this fact when the other person will almost certainly deny it? 

In my experience, there are 4 very important steps that can be taken to prove texting and driving.

4 Legal Steps to Prove Texting and Driving After a Car Accident 

How to prove texting and driving1. A preservation of evidence letter (also known as a "spoliation" letter) should be sent to the distracted driver and his/her insurance company as soon after the wreck as possible. The letter my office uses demands that the cell phone, along with text, email, Facebook, Instagram, Snapchat, Internet usage, and all other data history be preserved exactly as it existed at the time of the accident. If we learn that the phone was tampered with, or any potential evidence was deleted after receipt of our "spoliation" letter, we can seek to have the judge inform our jury of this fact in the event the case goes to trial. That looks very bad for the defendant. On the other hand, if evidence is not destroyed, we may very well have our "smoking gun" in the form of text messages that were sent and received in the moments leading up to the collision. Either way, a preservation of evidence goes a long way towards proving distracted driving.

2. In the event a lawsuit becomes necessary, we conduct what is known as “discovery.” In other words, we seek to discover as much as possible about the crash while uncovering every piece of evidence. Initially, we send out written discovery requests, known as interrogatories, requests for production, and requests to admit, to establish that texting – or some other form of cell phone distraction – caused the crash.

3. After a lawsuit is filed, South Carolina law allows subpoenas to be sent to any person or entity in possession of potential evidence. To this end, a subpoena should be sent to the negligent driver's cell phone provider to obtain cell phone records. While the subpoena response may only provide a call history or monthly data usage, it can provide evidence of how much time the at-fault driver spends glued to their cell phone.

4. If depositions are required to further prove the case and hold the driver responsible for his/her actions, the attorney should dig in on the distracted driving issue. This is especially true for rear-end collision and blown stop sign cases. Simply put, a driver does not run into the back of someone else unless he is going far too fast for conditions, following too closely, or driving while distracted. Many times, it is some combination of these dangerous variables. Though the defendant may not fully admit to using his cell phone at the time of the wreck, he will be forced to admit at least one major safety law violation (speeding, tailgating, taking his eyes off the road for a dangerous length of time) or look very foolish denying it. No matter his answer, you win.

Auto Accident Attorneys Can Help Prove Distracted Driving

If you were injured in an auto accident in the Columbia area due to a distracted driver—or any other reason—you should contact the Law Office of Kenneth Berger for a free consultation. A car accident lawyer can help injured people after an accident by handling the crash investigation, negotiating your insurance claims, and representing you in any lawsuits that you need to claim a full and fair recovery.

The attorneys at the Law Office of Kenneth E. Berger have years of experience handling cases like yours, and would be honored to help you and your family with the legal recovery process while you focus on healing. We have handled distracted driving cases across South Carolina for a number of years now and would be glad to assist you as well. If you believe the person who crashed into you was on a cell phone, but need help proving it legally, we are here to serve. Our offices are conveniently located in Columbia and Myrtle Beach, and we proudly serve the Sumter and Florence areas, as well as the entire state of South Carolina. Call us today at 803-790-2800 (Columbia, SC) / 843-427-2800 (Myrtle Beach, SC), or start a live chat 24/7 with a real, live person to arrange a free and confidential consultation. We look forward to hearing from you, and to holding the dangerous driver accountable.

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Kenneth Berger
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Columbia and Myrtle Beach car accident and personal injury lawyer dedicated to securing justice for clients.