Distracted Driving Awareness Series, Part 3 of 4 – Proving Cell Phone Use Contributed to an Injury Car Wreck

This month is recognized throughout the nation as Distracted Driving Awareness Month.  Biesterveld & Crook, LLC. is conducting a four-part blog series on distracted driving, as many injury accident cases result from this dangerous habit every year.  Part 3 of our series, Proving Cell Phone Use Contributed to an Injury Car Wreck, takes a look at the technology used to detect distracted driving and the legal procedures available for gathering cell phone use data.  This week’s blog will also delve into how the information can be obtained by injury attorneys.

Technology Used to Detect Cell Phone Use While Driving

As mentioned in last week’s blog, various technologies and applications exist to help eliminate distracted driving.  Various technologies also exist for detecting cell phone usage while driving.

A technology to detect texting and driving is being developed at the University of Waterloo, in Canada.  Electrical and Computer Engineering Professor, Fakhri Karray described the technology’s purpose as being able to improve road safety by alerting drivers when they are distracted to the point of causing danger to themselves or other drivers.  The technology allows the car to take over driving when the human is in imminent danger.  Computer algorithms, cameras, and artificial intelligence were developed to use machine-learning techniques that recognize actions like texting and talking on cell phones.  Various factors, such as duration of distracted time, link to the alerts that are sent out.

There are other options being developed to detect this behavior as well.  A company called ComSonics has developed a radar gun that catches texting drivers by picking up radio frequencies.  Cellular devices give these frequencies off when someone sends a text message.  This technology would allow police officers to use the radar guns to track speed, but also pick up on that frequency to see if the driver sent a text message while in motion.  The process to get this information is unfortunately very challenging and some are concerned that future lawsuits could occur regarding privacy.  For example, many are worried about the content of their personal messages being captured and looked at.  Some concern has also risen regarding the accuracy of the radar guns.

Another device is being developed for police officer use related to texting and driving.  Technological company, Cellebrite has created a device that can report exact times when phones experienced swipes or clicks on them.  This device eliminates the concerns about texts being read, as that information is never gathered or revealed.  While states like New York are still studying the technology and debating on putting it into use by their officers, the device is still argued by some as being “unconstitutional” because searches could be conducted on phones without search warrants.

Legal Procedures for Obtaining Cell Phone Use Data

In Kansas, injury attorneys can demand a negligent driver to provide his or her cell phone number and carrier pursuant to K.S.A. 60-233. With this information, the injury attorney can subpoena business records from the negligent driver’s cellular service provider pursuant to K.S.A. 60-245a.

The process is similar in Missouri except the applicable statutes are V.A.M.S. 510.020 – Interrogatories to parties and Supreme Court Rule 58.02 – Subpoena to Non-Party for Production of Documents and Things.

What Information Should Be Requested from The Cellular Service Providers?

Various cell phone carriers have different methods that they prefer individuals use in order to request subpoenas.  A cellular telephone and social media subpoena guide, created by Iris Investigations, was updated in March of 2016 with instructions on how to start the process with each carrier.  The following are the addresses in which to request subpoenas:

  • AT&T – AT&T Wireless, Subpoena Compliance Center 11760 US Highway 1, Ste.600, North Palm Beach, FL 22408
  • MetroPCS – MetroPCS Attn: Custodian of Records, 2250 Lakeside Boulevard, Richardson, TX 75782
  • Sprint – Sprint PCS Wireless, Sprint Spectrum, L.P., 6160 Sprint Parkway, Overland Park, KS 66251
  • T-Mobile – Subpoena Compliance Department, 4 Sylvan Way, Parsippany, NJ 07054
  • TracFone Wireless – TracFone Wireless, Inc. Subpoena Compliance, 9700 NW 112th Avenue, Miami, FL 33178
  • U.S. Cellular – U.S. Cellular Subpoena Compliance Department One Pierce Place, Suite 800, Itasca, IL 60143
  • Verizon – Cellco Partnership dba Verizon Wireless Custodian of Records, 180 Washington Valley Road, Bedminster, NJ 07921

The injury attorneys at Biesterveld & Crook, LLC, historically request the following information:

“For cell phone number [negligent driver’s cell phone number]: network logs including IP addresses, dates and times; incoming and outgoing SMS messages including the date and time sent and the recipient’s phone numbers and the content of the messages; call logs including the date and time of incoming, outgoing, and missed calls for the two-hour period beginning at [thirty minutes prior to wreck] on [date of wreck].”

The information pursuant to the request reflects the opinion of the client.  Punitive damages can often be recovered in these cases, as it is common knowledge that using a cell phone while driving is as dangerous as driving under the influence.  To learn more about those punitive damages, be sure to check out our blog “Holding Distracted Drivers Accountable”, which concludes our Distracted Driving Awareness Series.


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