How Can I Prove the Other Driver Was on Their Phone?

We've all been behind the wheel, looked into the next lane or into the rear-view mirror, and noticed another driver on their phone. Some of us might even admit to doing this kind of thing ourselves when we know we should be devoting our full attention to the road.

So, it's no surprise that phone use plays a role in car accidents. But what can you do if you're convinced that the other driver in your car accident was on their phone at the time of the crash? Can you get the other driver's phone records to try to make your case? And even if you can prove that they were on their phone, does that make the other driver automatically at fault? Let's answer these questions, plus a few more.

How Many People Use Their Phone While Driving?

It probably won't surprise you to know that there's no definitive answer to this question—for one thing, most people don't want to admit to doing something that's against the law in many states. But there are studies and statistics that can help paint a picture of how common this kind of behavior might be. The latest data from the National Highway Traffic Safety Administration (NHTSA) says that at any given moment across the country:

• just over 2 percent of drivers are talking on a phone they're holding in their hand
• around .5 percent of drivers are talking on their phone using a visible hands-free headset, and
• 3 percent of drivers are tapping, scrolling, or otherwise engaging with a handheld phone.

It's a near-certainty that the real numbers on phone use while driving are higher than these, but it's a starting point for understanding the scope of the issue.

What Are the Statistics on Phone Use and Car Accidents?

The NHTSA's latest numbers on cell phone-related activity and the incidence of traffic accidents (for 2023) show that there were:

• 397 fatal traffic crashes in which at least one driver was talking on a phone or otherwise engaged in phone activity at the time of the accident, and
• 30,970 people injured in traffic accidents where phone use played a part.

Get the basics on phone use and car accidents.

Is Phone Use Considered "Distracted Driving"?

Yes, in the eyes of the law (including in state laws known as "vehicle codes"), any kind of phone use while driving tends to fall into the larger bucket of "distracted driving." Besides their phone, a driver can be distracted by almost anything—eating, putting on makeup, adjusting the vehicle's climate controls, or reaching for something in the back seat. Learn more about distracted driving laws.

How Can You Get the Other Driver's Phone Records?

Let's say you were in a car accident, and you have good reason to think the other driver was using their phone at the time of the crash. It was a sideswipe accident, and as the other driver drifted into your lane, you saw them with their eyes down, and with one or both hands off the wheel. Maybe they didn't even look up before the moment of impact, when your vehicle was sent into the freeway's concrete median, causing you serious injuries.

Of course, the other driver denies they were doing anything wrong, and they even say you're to blame for the accident. You've filed a third-party car insurance claim with their insurance company, asking for compensation for your car accident injuries, vehicle damage, and other losses.

You want to make the other driver hand over their cell phone records so you can show they were on the phone at the time of the accident. Or, you want their cell phone provider to give you those records so you can prove your side of the case. Can you do that?

Getting Phone Records After a Car Accident Means Getting a Subpoena

You can't subpoena the other driver's phone records unless you've filed a lawsuit against them. So, if you've only filed a car insurance claim over the crash, you can't do much more than ask the other driver nicely for their phone records, and that's not likely to get you very far. So if you're intent on proving that the other driver's phone use caused your accident, you need to:

• decide whether it's really worth it to take the matter to court (more on this later), and, (if you believe it's worth it)
• file a car accident lawsuit against the other driver.

Just filing the lawsuit isn't enough to get those phone records. You probably need to show some legitimate reason why the subpoena is necessary—why the judge should order the phone service carrier to turn over the records, in other words. Even if it's becoming more and more common for drivers to be on their phones while behind the wheel, you probably need to show the judge some amount of evidence that the other driver was using their phone in your particular accident. It's likely not enough to have a hunch or use the power of the subpoena to go on a "fishing expedition."

If you do get the subpoena, it will be sent to the other driver's cell phone carrier, ordering them to produce records for a specific date and range of time that corresponds roughly with the time of your accident.

What Do Cell Phone Records Show About the Car Accident?

If you can get your hands on the other driver's phone records (sometimes called a "Call Detail Record") as part of a car accident lawsuit, you'll probably be able to see:

• incoming calls (calls made to the driver's phone) that were missed or answered
• outgoing calls (calls the driver made, whether or not they were answered)
• the start time, end time, and duration of incoming and outgoing calls
• timestamps showing when text messages were sent and received (but not the content of those messages), and
• overall data usage.

Can I See If the Other Driving Was Using Social Media?

What if the other driver wasn't necessarily on a call, or reading or sending a text message at the time of the accident? What if they were scrolling through their Instagram account or watching TikTok videos at the time of the accident? There are plenty of ways for a driver to become distracted by their phone, beyond just talking or texting.

A driver's cell phone records won't show whether (or when) they were using their phone to scroll through their social media account, using a particular app, visiting a website, or using a browser in some other way. This kind of activity will usually show up on the phone records as general "data usage," but there won't typically be any details beyond that. You won't see when the driver was "using data," or what they were looking at. But this is also where things can get tricky. Even if you could prove that the other driver was engaged in "data use" at the time of the accident, what if they were using their phone in a hands-free mode, and the "data use" was driving directions from a GPS app?

In any event, to get to this level of phone use information, you'd need access to the phone itself. But…

You Can't Subpoena the Other Driver's Actual Phone in a Car Accident Lawsuit

To access or capture details like exactly when a driver was using their phone, and exactly what they were looking at or engaged with, you'd need to have legal authority to have the phone seized and searched (through a court order or search warrant, for example). That's not going to happen in a run-of-the-mill car accident case, even one that ends up in court.

Phone seizures and searches are usually only possible in criminal court, and even then there are roadblocks to unlocking the data. iPhones, for example, can't usually be unlocked even by Apple itself, so law enforcement agencies often run into problems with these devices. Learn more about search-and-seizure rules and criminal law.

If the Other Driver Was Using Their Phone, Is Fault for the Crash Automatic?

Most states' laws prohibit drivers from using smartphones or similar devices for any purpose while driving. There are usually exceptions for emergencies, and for hands-free use.

For example, in California, you're prohibited from holding and using a smartphone or similar device while driving. Hands-free use is permitted by drivers who are over 18. California drivers under the age of 18 are prohibited from any type of cell phone use while behind the wheel (even hands-free use).

If the other driver's behavior in the moments leading up to the crash is specifically prohibited under your state's device use/driving laws, that's almost always going to be clear evidence that the other driver was negligent, and at fault for the accident.

But even if a certain kind of phone use isn't specifically prohibited under your state's traffic laws, using any kind of device while behind the wheel would almost certainly qualify as "distracted driving," which is itself a violation of most states' driving laws. And if that behavior leads to an accident, that's almost always going to be enough to establish liability.

The Phone Records Might Be Open to Interpretation

Keep in mind that what the phone records show might not be definitive. What if, for example, the records show that a text message was sent to the other driver's phone in the seconds before the crash, but there's no way of proving that the driver actually read the message at that time? In a situation like that, it becomes a point of argument when you're trying to establish fault for the crash. Of course, if those same records show that the other driver sent a text message at the time of the crash, there's a much stronger case that they were clearly on their phone at the time.

What Are Some Other Ways to Prove That the Other Driver Was Using Their Phone?

If you're only making a car insurance claim, and you don't want to take the matter to court and utilize the subpoena process, you have other options for trying to prove that the other driver was using their phone at the time of the accident.

Did a Witness See the Other Driver Using Their Phone?

People who witnessed any part of the crash—including the seconds leading up to it—might be able to help your case by giving a statement about what they saw. That could mean other drivers, pedestrians, or even a passenger who was in the other car. Maybe the passenger was hurt in the accident too, and they'd be willing to help you prove that the other driver's phone use caused the crash, in order to help their own case alongside yours. Learn more about how witnesses can help a car accident case.

Is There Video Footage of the Other Driver on Their Phone?

You might also be able to get your hands on surveillance camera footage, traffic camera footage, or other video evidence that might show some or all of the crash, and may have even captured the other driver's phone use. You don't usually need a court order to get this kind of footage. You can just start by asking the business or property owner for it. Learn more about getting surveillance video in a car accident case (from Lawyers.com).

Do I Need a Lawyer's Help Getting Phone Records After an Accident?

As we've explained, you're probably not going to be able to get your hands on the other driver's phone records unless you've taken things to court and filed a lawsuit over the accident (and even then, getting the records isn't a guarantee).

Having an experienced legal professional on your side is crucial any time you go to court, and that's doubly true if your case hinges on getting critical evidence through the subpoena process. And of course, talking to a lawyer about the strengths and weaknesses of your car accident case can give you a clear sense of how (or if) you want to move forward with a claim. Learn more about how an attorney can help in a car accident case.