• How to Prove Your Case against a Distracted Driver
  • April 23, 2014
  • Law Firm: Jonathan Perkins - New Haven Office
  • By this point, nearly everyone is aware of the dangers of using a cell phone while driving. New studies come out daily proving that texting, talking on the phone, or a variety of other distracting activities can lead to accidents.

    Despite these obvious facts, it is more difficult than many people expect to prove legally that a driver was distracted before an accident.  A driver who is faced with a lawsuit often morphs into a model motorist to avoid liability. Without concrete evidence, a distracted driver may never be held responsible for his or her reckless behavior.

    What Can I Do To Prove Distracted Driving?

    If you are involved in an accident which you believe was caused by a distracted driver, there are many types of evidence which should be collected to support your case. These include:

    Police Reports and Officer Testimony

    When a police officer arrives on the scene of an accident, he or she will make a report of the conditions which caused the accident. If the officer records that the driver admitted texting while driving, or observed the driver’s behavior prior to the accident, the officer’s testimony can be used to support a distracted driving claim. 

    Eyewitness Testimony

    Similarly, witnesses to the accident may be able to prove that the driver was distracted.  Passengers in the driver’s vehicle, drivers in other lanes, or pedestrians may have seen the driver using his phone, staring into her lap, reading a paper or map, or engaging in any other behavior which could be considered distracted driving.

    Security Camera Footage

    Most urban areas have security cameras everywhere. Surveillance footage from parking garages and stores, or pictures from red light cameras may have captured a distracted driver in the act.  This type of evidence can be powerful motivation for a distracted driver to settle your claim. 

    Cell Phone Records

    One of the most helpful pieces of evidence in a distracted driving case is the driver’s cell phone records. These records will establish a driver’s cell phone activity prior to an accident, even if the driver erased the texts or call logs.

    As important as this evidence is, it is not ironclad proof of negligent driving. A good defense attorney may argue that just because the phone received a text or phone call doesn’t mean that the driver responded to it or that the driver was even aware that a text or call came in. Cell phone records also require the time of the accident is established conclusively—a text ten minutes before a collision was probably not the cause of the accident. 

    Interrogatories & Depositions

    An attorney for a person injured by a distracted driver will send several interrogatories to a distracted driving defendant. These interrogatories will ask the driver to admit to certain statements, for example, that he or she was using a cell phone or was otherwise distracted before an accident.

    In addition to interrogatories, the distracted driver will also be required to take part in a deposition.  At the deposition, the defendant will be put under oath, likely videotaped, and questioned about his or her activities shortly before the accident. Many people have difficulty lying under oath, especially when confronted with other evidence like cell phone records, and will admit to driving while distracted.


    An accident investigator will usually take pictures of the inside of a vehicle shortly after an accident. These photographs will sometimes support the idea that a driver was distracted. For example, an open makeup kit, a switched on computer or tablet, or half-eaten food suggests that the driver was multitasking while driving.

    Accident Reconstruction

    Accident investigators can also reconstruct the cause of an accident. Usually, a driver does not drift out of his or her lane while paying full attention to the road. Reconstructing an accident can lend support to the idea that the driver was distracted by something prior to the accident.

    What Will Not Help My Case?

    Even the most damaging evidence is worthless if it cannot be presented in court. Some common examples of things which are not admissible include:


    Let’s say that after an accident the other driver tells you that he was texting on his cell phone and not paying attention.   When the police show up, however, he makes no such statement and never admits to texting while driving again. Can this statement be used to prove that he was distracted while driving?

    Probably not. Every state has rules about what type of evidence is admissible in court. The statement above is hearsay, which is usually not admissible. Hearsay is an out-of-court statement, retold by someone in court, in order to prove the truth of a matter. In other words, hearsay is someone recounting what someone else said in order to prove that something happened. Hearsay is prohibited because this type of “he-said-she-said” evidence is not reliable. Unless the statement falls within very specific exemptions, it probably cannot be used as evidence in a court case. This does not mean that it cannot be used as leverage during settlement negotiations, however.

    Prior Tickets or Citations

    If a driver has multiple citations or tickets for using a cell phone while driving, can these tickets be used as proof that she was probably using her cell phone before this accident? No. This type of evidence, called “prior bad acts,” is almost always not admissible in court. No matter how terrible of a driver the person who caused your accident is, a person’s driving history is usually not relevant to the facts of your particular accident. 

    Proving your Case Requires a Skilled and Resourceful Attorney

    A distracted driver will likely have many defenses. Maybe he will claim that he was using the GPS on his cell phone, which many states do not prohibit. Maybe she will claim that she never saw the text that came in shortly before the accident. Or, maybe there is no obvious evidence that the driver was trying to calm an unruly pet in the backseat rather than watching the road.

    If you were injured by a distracted driver, you need a law firm with the resources to collect multiple types of evidence to prove your case. The attorneys at Jonathan Perkins Injury Lawyers have experience using all of the techniques above to prove cases against distracted drivers throughout Connecticut. If you have been injured by a distracted driver, call 1-800-PERKINS or (203) 397-1283 for a free consultation, and start building your case today!