XV. Cellphone Evidence

The use of cellphones is one of the biggest distractions for truck drivers. The best evidence of cellphone use is a download of the cellphone itself. Because it is impossible to crack a password-protected smartphone without the password, the driver must provide his password in order to access the contents of the cellphone. If the driver refuses to give his password or suddenly cannot “remember” his password, then there is no reason to do anything with the cellphone itself other than to point out to the jury that the driver is most likely failing to remember his password because the contents of the cellphone are harmful to his defense of the case.

As long as the password is provided, you can hire a company to copy the contents of the phone and determine if the phone was in use at the time of the collision, including if the person was in the process of typing a text, was browsing the internet, was watching a video or doing anything else with their phone. The download of the phone is preferable to cellphone records because records only show completed texts and phone calls and not other cellphone activity. It is important to place the driver and company on notice to preserve the driver’s cellphone for a later download at the beginning of a case. Because drivers sometimes have more than one cellphone, make sure you request that all cellphones “owned, operated or used” on the date of the accident are preserved.

If the cellphone cannot be downloaded, then the next best thing is to obtain the driver’s cellphone records. You can only obtain cellphone records after a lawsuit has been filed by serving the cellphone provider with a subpoena. The cellphone records should include information about any texts sent or received, any phone calls made or received and cell tower information concerning the location of the person when the text or call was initiated.

You should always request 24 hours before the incident and 24 hours after the incident because many providers keep cell records in UTC time (Greenwich time zone). You will have to determine how to convert the UTC time in the cell records to the time zone in which the accident occurred.

In order to determine if the driver was using his cellphone at the time of the collision, it is necessary to know the exact time of the accident. The best evidence of the time of the collision is the initial 911 call. The 911 call log will have a specific time in terms of minutes and seconds when the initial call was made to 911.

You will then have to depose the witness who called 911 to determine the passage of time from when the impact occurred between the vehicles to when the 911 call was initiated by the witness. It is generally accepted that the accident will have occurred within a minute of the collision if the collision occurred on a busy interstate. However, in more rural areas, there can be a longer passage of time between the impact and the 911 call. If there was no 911 call, then you have to gather circumstantial evidence from the witnesses at the scene to determine when the accident occurred.

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