How can I prove distraction or texting caused a car crash?

When it comes to proving that a driver was texting and driving after a South Carolina car accident, the burden of proof is on the injured party. This can be a daunting task, especially when the other driver denies any wrongdoing. However, there are steps that can be taken to prove that texting and driving was indeed the cause of the accident.

In an age where most people carry their smartphones with them at all times, it may not surprise you that the best source of evidence that a driver was distracted or texting while driving is the phone itself. And naturally, an at-fault driver is going to want to hide that evidence. For the victim, this is scary though – most victims aren’t going to seize the other driver’s phone at the scene of the accident to protect the evidence.(Victims, of course, are not allowed to seize the other driver’s phone at the scene, nor should they try.)

Fortunately, the law provides better and safer ways to get the proof you need than grabbing the other driver’s phone: phone and app records, the phone itself, and through legal procedures such as spoliation letters and subpoenas. And if the evidence goes missing, this may be held against the driver who “lost” their phone after the crash. While these legal procedures exist to preserve the evidence, it is still important to move quickly and gather evidence before it disappears.

Spoliation Letters

Spoliate – not spoil-ate – is a legal term that means destruction of evidence. Many car accident attorneys will send “spoliation letters” to the other party in a car accident instructing them to preserve the evidence on their phone. 

While this may seem like the attorney is tipping off the other side and giving them time to delete the evidence, you’ll want to keep in mind two things: first, in today’s world, everything is stored somewhere on a server, so even if the phone “disappears,” there are probably still records to be found. Further, if evidence is spoliated, the court may enter a presumption that the evidence harmed the party that “lost” the evidence. In other words, it’ll hurt the distracted driver almost as much to destroy the evidence as it would to present the evidence in court.


You’ve probably heard the term “subpoena” before. It is a demand for evidence that lawyers and courts can use to require someone to turn over evidence. And when you’re trying to prove distracted driving, a subpoena can be very handy: phone records, app records, and even the phone itself may be subpoenaed in order to give your lawyer and your experts the evidence they need to show that the other driver was distracted, texting, watching a movie, or doing some other nonsense on their phone while driving – and that the accident resulted. (Note that a subpoena may be sent by your lawyer only after a lawsuit is filed in court.)

Other Evidence

For the most part, photographs of the scene usually won’t show proof of distracted driving – unless the other party was rendered unconscious by the accident with the phone in her hand. However, you (or a friend, family member, witness, or passenger) should still err on the side of too much evidence and take as many pictures, videos, and notes about the accident scene as you possibly can. Photos are great evidence for the attorneys and court to get a better idea of the accident scene.

Furthermore, in many cases, the police will respond to the scene and investigate the accident. If they ticket the other driver for distracted driving or texting while driving, which has been illegal in South Carolina since 2014, this can be used as proof of fault in your car accident claim.

Lastly, talk to nearby witnesses. It’s a longshot, but one of them may have noticed the other driver looking down at a phone or screen, rather than focusing on driving their car safely.

It’s Important to Move Fast in Protecting Evidence

If you suspect distracted driving as the cause of your accident, it is important to start gathering evidence to prove your claim as soon as possible. Because spoliation letters and subpoenas are complex for laypeople to execute, it is imperative that you seek experienced counsel to issue these letters and gather the evidence that is needed to prove your claim while the evidence still exists. At Proffitt & Cox,, we’ve spent decades investigating car accident causes and proving claims for the people of Columbia. We offer a free consultation in injury cases and would be happy to discuss your case with your and your family. Get started today.

Find a South Carolina Auto Accident Attorney

If you suffered an injury from a serious auto accident, you may be facing significant medical bills. You may also be struggling to pay for your expenses because of an inability to work while you recover from your injuries. However, help is available to those who suffered injuries due to the negligence of others as well as for the families of fatal accident victims.

For years, our Columbia injury lawyers have worked on behalf of the people of South Carolina to gain them compensation for their motor vehicle accident injuries. We may be able to provide personal and effective legal support for you as well. Call the attorneys at Proffitt & Cox, LLP today at 803-834-7097 for a free consultation. You can also call the firm toll free at (877) 276-0533 or by filling out the contact form on our site.


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We understand that when an injury occurs, people are concerned about medical expenses, lost income, and compensation for their pain and suffering and other damages. We can answer these questions, and more importantly, we can put our experience to work immediately toward helping victims of careless or wrongful conduct obtain prompt and appropriate compensation.

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