A textalyzer is a device proposed for use by law enforcement to detect whether a person was operating a cell phone while driving. In the personal injury realm, the reason why this device could change the way cases are litigated is that, more often than not, when a person is forced to file a lawsuit against the driver at fault, the investigation to uncover whether the person at fault was distracted by a cell phone does not yield any promising results.
The first step to try to obtain information regarding whether a driver was using his or her cellphone while driving and consequently caused a wreck is to look into the police officer’s crash report and whether any witnesses have knowledge of that fact. Unfortunately, it is always the police officer’s discretion that guides the decision of whether to issue a citation for the offense and if there is no citation, the officer decides whether to even note in his or her crash report that the offender was distracted by the use of a cellphone.
Many times, a victim who is rear-ended by someone distracted by their cellphone is able to see in the rear-view mirror that the person is looking down or holding a device with their hands with their eyes away from the road prior to striking them. So, the victim’s attorney may have only that information to go off in order to start their investigation. If the victim’s claim for injuries does not resolve prior to filing a lawsuit, then it is during the litigation process that the plaintiff’s attorney will pursue an investigation into the reason or reasons why the crash occurred. One way to try to discover whether the offender was using his cellphone is to send documents to his or her attorney known as “discovery requests”. These documents seek sworn answers to a number of questions and also may seek documents such as cellphone bills or itemized statements.
Defense attorneys will to review these requests and if they find any objectionable grounds, to state the reason why their client cannot respond, should not respond, does not have to respond, or does not have the information, among others. After some discussion, the attorneys may be able to reach an agreement regarding what information should be exchanged. If they are unable to reach an agreement, the victim’s lawyer will generally seek the court’s intervention. The court may force the parties to work it out, or may make a decision on its own. If the court decides that the information about cellphone use is “discoverable”, then it usually will give the offender some time to respond. Once the victim’s lawyer gets the responses, it may find that the response is something along the lines of “I do not have that information”.
Another avenue for the victim’s lawyer to try to ascertain whether cellphone use was involved in the wreck is to subpoena the offender’s cellphone provider’s records. In order to do that, the lawyer needs to have specific information such as the account holder’s full name, account number, and/or phone number. The process gets trickier if the offender was using a cellphone that is registered under someone else’s account, such as their parents or spouse. Another hurdle is that many cellphone service providers have a short record retention policy, so that by the time the lawyer has the information needed to subpoena the records, the records have been destroyed. Other companies do not keep detailed records of cellphone usage. For example, one may be able to find out if someone was on a phone call but may not be able to see whether the person was surfing the web or using an app such as “SnapChat” while driving. There are other ways in which a lawyer may be able to obtain information, but for our purposes, just know that the investigation can and usually does take up to several months. In the meantime, the victim continues to accrue medical bills, lost wages, and other out of pocket expenses that remain uncompensated.
The textalyzer seems to be a device that, while assisting law enforcement in pursuing a traffic violation, it could also incidentally streamline the process by which a victim’s lawyer can make an offender liable quicker in civil court so that the victim can be justly compensated. All of our previous discussion assumes that an offender has not admitted to driving while distracted by a cellphone. Whether the findings of the textalyzer would be made available relatively easily or quickly to the victim’s lawyers remains to be seen if the device is implemented in Texas. The same goes for whether the results are admissible in court.
If you or someone you know has been injured by a distracted driver, do not hesitate to call Pastrana Law Firm now for a free consultation at 512-474-4487.
Learn more about the textalyzer here: