Proving Distracted Driving Requires Specific Evidence
Suspecting the other driver was distracted and proving it in court are two different things. Michigan’s hands-free driving law (MCL 257.602b) makes it illegal to hold or use a mobile electronic device while operating a vehicle, but a violation alone does not automatically win your case. You need concrete evidence that the driver was distracted at the moment of impact and that the distraction caused the crash.
Building that evidence starts immediately after the accident and requires knowing where to look, what to preserve, and how to compel disclosure of records the other driver will not voluntarily hand over.
Cell Phone Records and Usage Data
Cell phone records are often the most direct proof that a driver was texting, browsing, or on a call at the time of a crash. These records can show:
- The exact time calls were placed or received
- When text messages were sent or read
- Data usage timestamps showing app activity (social media, email, web browsing)
- GPS and location data from the phone’s operating system
The problem is that cell carriers and the other driver will not simply hand over these records voluntarily. Your attorney must issue a subpoena to the carrier (or serve formal discovery in a lawsuit) to obtain them. Timing matters—carriers retain detailed call and text records for varying periods, and some data may be overwritten within months. Preserving this evidence early is critical.
Beyond carrier records, the phone itself may contain app-level data. Snapchat, Instagram, Facebook, and other apps log usage timestamps. If the driver was posting to social media at the time of the crash, that data can be subpoenaed from the app provider or recovered from the device through forensic analysis.
Event Data Recorder (EDR) Information
Most modern vehicles are equipped with an event data recorder—sometimes called a “black box”—that captures data in the seconds before and during a collision. EDR data can reveal:
- Vehicle speed at the time of impact
- Whether the brakes were applied and when
- Steering input (or lack thereof)
- Accelerator pedal position
- Seatbelt status
- Airbag deployment timing
While the EDR does not directly record phone use, the data it captures can strongly support a distraction claim. A driver who made no braking attempt before a rear-end collision at 45 mph was clearly not paying attention to the road. Combined with phone records showing active device use at that same moment, EDR data creates a compelling picture of distracted driving.
Accessing EDR data requires specialized equipment and, typically, legal authorization through a court order or the vehicle owner’s consent. Your attorney should send a preservation letter to the other driver and their insurer immediately after the accident to prevent the vehicle from being repaired, sold, or scrapped before the EDR can be downloaded.
Traffic Camera and Surveillance Footage
Many Michigan intersections and highway segments are monitored by traffic cameras operated by the Michigan Department of Transportation (MDOT) or local municipalities. Additionally, nearby businesses—gas stations, banks, restaurants, and retail stores—often have exterior security cameras that capture adjacent roadways.
This footage can show the at-fault driver looking down at their lap, holding a phone to their ear, swerving, or failing to react to changing traffic conditions in the moments before the crash. The challenge is that most traffic and surveillance systems overwrite footage within 30 to 90 days. Your attorney needs to identify relevant cameras and request or subpoena the footage immediately after the accident.
Dashcam and In-Vehicle Camera Footage
If you, a witness, or even the at-fault driver had a dashcam running at the time of the crash, that footage may capture the collision and the other driver’s behavior leading up to it. Some newer vehicles also have interior cabin cameras (common in rideshare vehicles, commercial trucks, and vehicles equipped with driver monitoring systems) that may directly show the driver looking at a phone.
Witness Testimony and Depositions
Eyewitness accounts remain powerful evidence. Other drivers, passengers in either vehicle, and bystanders may have observed the at-fault driver holding a phone, looking away from the road, or behaving erratically before the crash. Passengers in the at-fault driver’s own vehicle can be particularly valuable witnesses—they may have directly observed the driver scrolling through their phone.
During the litigation process, your attorney can depose the at-fault driver under oath. Deposition questions can probe what the driver was doing in the minutes before the crash, whether they were using their phone, what apps they had open, and whether they noticed the hazard before impact. Inconsistencies between deposition testimony and phone records can be devastating to the defense.
Police Reports and Officer Observations
The responding officer’s report may note evidence of distracted driving observed at the scene: a phone found on the driver’s lap or seat, an open app visible on the screen, or the driver’s own admission that they were using their phone. Officers are trained to document these details, and their observations carry significant weight in both insurance claims and courtroom proceedings.
If the officer issued a citation for violating MCL 257.602b (Michigan’s hands-free law), that citation is admissible evidence that the driver was using a handheld device. While a traffic citation alone is not conclusive proof of negligence, it substantially supports your claim.
Michigan’s Hands-Free Law and Negligence Per Se
Under MCL 257.602b, it is illegal to hold or use a mobile electronic device while operating a motor vehicle in Michigan. When a driver violates this statute and causes a crash, the doctrine of negligence per se may apply. This means the violation of the safety statute itself establishes that the driver breached their duty of care—you do not need to independently prove that holding a phone while driving was unreasonable. You still need to prove that the violation caused the accident and resulted in your injuries, but the breach element is established by the statutory violation.
Types of Distraction Beyond Cell Phones
Not all distracted driving involves a cell phone. The National Highway Traffic Safety Administration categorizes driver distraction into three types:
- Visual distraction: Taking your eyes off the road (looking at a GPS, turning to talk to a passenger, rubbernecking)
- Manual distraction: Taking your hands off the wheel (eating, adjusting controls, reaching for an object)
- Cognitive distraction: Taking your mind off driving (daydreaming, intense conversation, emotional distress)
Texting while driving involves all three categories simultaneously, which is why it is so dangerous. But proving non-phone distractions—like eating, grooming, or adjusting a stereo—typically requires witness testimony, the driver’s own admissions, or physical evidence found at the scene (spilled food or drink in the vehicle, for example).
Frequently Asked Questions
Can I get the other driver’s phone records without a lawsuit?
Generally, no. Cell carriers require a subpoena or court order to release subscriber records. Your attorney can send a preservation letter to the carrier immediately after the accident to prevent records from being deleted, and then obtain them through formal legal channels once a claim or lawsuit is filed.
What if the driver admits they were on their phone but says it did not cause the crash?
The driver’s admission that they were using their phone is strong evidence of distraction. Whether the distraction caused the crash is a separate question, but EDR data showing no braking, combined with the phone use, creates a strong inference of causation that is difficult to overcome.
Is hands-free phone use ever considered distracted driving?
Hands-free phone use is legal under Michigan law, but it can still constitute negligence if it contributed to a crash. A driver engaged in an intense hands-free conversation who fails to notice stopped traffic ahead may still be liable for the resulting collision, even though they did not violate MCL 257.602b.
Injured by a Distracted Driver? Contact Us for a Free Case Review.
Proving distracted driving requires prompt action to preserve evidence before it disappears. If you were injured in a crash that you believe was caused by a distracted driver, call The Joseph Dedvukaj Firm, P.C. at 1-866-HIRE-JOE or visit 1866hirejoe.com for a free consultation. We handle the investigation, subpoena the records, and build the case—you focus on getting better.