There are an increasing number of automobile crashes attributable to driver distraction. A study conducted by Harvard University for the National Safety Counsel (NSC) last year estimated cell phone use contributed to 636,000 crashes, 333,000 injuries, 12,000 serious injuries and 2,600 deaths last year. The American Medical Association (AMA) voted in November 2008 to advocate for state legislation prohibiting the use of hand held devices used to text message while driving. And safety council President Janet Froester (nsc.org) has said the results of 50 studies and surveys show driving while intoxicated and driving while texting are equally dangerous acts. A number of bills introduced into the 2009 Florida Legislature called for a ban on text messaging. None passed.
Different states have different laws regarding the usage of cell phones while driving. In the State of Florida, currently there are no prohibitions against the usage of cell phones. There is no requirement that the cell phone be linked to a hands-off device.
Although there is no prohibition against the use of cell phones while driving, if there is evidence that a cell phone was being used and contributed to the accident, we would use this as proof of negligence on the part of the at fault driver.
Cell phone records of an adverse party can be obtained through the discovery process after a lawsuit is filed. The most common way to obtain the cell phone records is by obtaining the phone number through interrogatories, requests for production or deposition. A subpoena can then be issued to the cell phone company for production of the records. (You can see a subpoena used in one of our cases by clicking here.)
