December 10, 2021
Being a distracted driver in today’s digitally interconnected world is all too easy. The small computers we carry in our pockets vie for our attention every second of the day. Sadly, we risk letting these devices overpower our common sense when behind the wheel of a car. Traffic in a metropolis like Los Angeles means blocks of time spent constantly stopping at traffic lights, slowing down due to traffic congestion, and this makes it ever-so-tempting to glance at our social media feed, order food, or snap a selfie to make use of those moments. This is dangerous. Distracted driving can be linked to many motor vehicle accidents.
The same technologies we rely on for work, social interaction and entertainment can yield a treasure trove of evidence supporting a contention that a driver was at fault due to distraction, even if the use of the device was lawful. California Vehicle Code § 23123.5 (a) states: “A person shall not drive a motor vehicle while holding and operating a handheld wireless telephone or an electronic wireless communications device unless the wireless telephone or electronic wireless communications device is specifically designed and configured to allow voice-operated and hands-free operation, and it is used in that manner while driving.”
It is the opinion of this author that determining whether a driver’s use of a cellphone was lawful is not clear, and furthermore, that determination alone fails to satisfactorily answer this important question: Was the driver “distracted”? One California law relevant to this discussion is California Vehicle Code § 23123.5. This Code fails to deliver the level of detail and clarification needed for its effective enforcement. Consider §23123.5 (a) in its original iteration in the context of this hypothetical: Could a driver scroll through a social media feed, type in a search on a web browser, or use Google Maps if the “electronic communications device” was mounted on the dashboard or windshield (hands-free)? According to People v. Spriggs, § 23123.5 was amended in 2012 to allow, for example, texting while driving if the device is “designed and configured to allow voice-operated and hands-free operation” and mounted on a windshield. [224 Cal. App. 4th 150, 164, 168 (2014)]. In Spriggs, the defendant was convicted of violating Veh. Code § 23123 (a) because Defendant was looking at a “map on his cellular telephone while holding the telephone in his hand” [Id. at 153]. Defendant argued that, as to the section in question, he committed no violation because he was not on a call. The Appellate Court agreed with the Defendant: “pursuant to the rules of statutory interpretation, including our review of the language and legislative history of section 23123(a), that the Legislature intended the statute to only prohibit the use of a wireless telephone to engage in a conversation while driving unless the telephone is used in a hands-free manner. Therefore, we hold that Spriggs did not violate section 23123(a) and reverse the judgment.” [Id. at 154]. Regardless of the fact that Defendant’s phone was not “mounted”, per the amended code, the Appellate Court focused on the specific wording of the original code, namely, that violating this code comes down to manually engaging a cell phone the old-fashioned way when the device is used for a phone call. “Distraction” is not addressed. In addition to this, it appears this law relies extensively on human observation (for example, a police officer) of the alleged violation as it unfolds.
This author believes that determining the lawful use of a cell phone is arguably prone to a wide, subjective range of interpretations, and that even though the Vehicle Code fails to properly define “distraction” or “distracted driving” it still attempts to penalize it. In my view, the discovery process in civil litigation is essential in determining whether a driver was distracted or not. In the context of a motor vehicle case, producing cell phone data during the discovery process could answer at least two important and relevant questions: (1) Was the driver using a cell phone or electronic communications device at the time of the impact? (2) What was the extent of the use? The technological advancements in modern communications gadgets can deliver an objective, reliable, fact-based gauge of driver distraction.
What kind of information can a cell phone reveal about the circumstances leading up to the moment of impact? Modern cell phones constantly communicate with cell towers, wireless networks, cellular networks, resulting in data transmission that can pinpoint a cell phone to a particular time and place. Wireless routers, for example, have a radius of about 150 feet. A cell phone attempting to connect to a wireless network through a router (often automatically, depending on the phone’s settings) discloses its location within 150 feet on this information alone. But even if a phone fails to connect to a wireless network, the phone will record an event – that it “saw” the network. Additional applications on the phone, such as Google Maps, can further zero into the exact geolocation. Today’s modern phone also contains a GPS chip, which enhances the geolocation information available. Cell phones leave an extensive, timestamped, digital trail of a person’s whereabouts.
Detailed geolocation is not the only data cell phones store. A distracted driver, for example, might have been typing into a search engine, updating his social media profile, sending a message, playing a game, and so on. It is highly likely that today’s phones at least have the ability to save all browser searches, sometimes deep within the labyrinthine filing system of the phone, data that is not easily “erased” or “deleted” and which can be accessed by competent forensics experts. “Deleting” data on a phone is not as simple as one might think. According to forensics experts, a cell phone marks the “deleted” data and no longer shows that picture, for example, to the user; instead, at a later time when the phone needs more memory space, the phone uses the “deleted” data’s memory block by “writing” over it. Even then, deleted data can be recovered because phone applications work in a database-type system which means that, even if a person were to delete information from his or her phone, that information can be recovered from databases and be rebuilt to recover messages, pictures, photos, videos, voicemails, and so on. Applications also store information such as the exact time of use. Furthermore, clicking on a link inside an application could potentially launch a new application (i.e., clicking a social media link fires up the web browser or some another application). A new link to the extensive chain of phone data along with other data sources to mark the time of use and the extent of use — such as the length of time the user was occupied with a particular application.
Cell phones contain data that is arguably objective, reliable, factual, and that can be reasonably used to accurately determine whether a driver was distracted at the moment of impact. However, the use of cell phone data in personal injury cases is a relatively new development, and remains largely unchartered territory. Opposing counsel would likely object to disclosing his or her client’s cell phone data. A well-tailored request could help one avoid breaching a person’s right to privacy. Moreover, opposing counsel is not without tools. He or she could file a Notice of Motion for Order Limiting Scope of Discovery, draft a Declaration Supporting Motion for Order Limiting Scope of Discovery. In time, attorneys will devise the legal and technical language necessary to effectively limit the scope of cell phone data to be extracted by hired forensics experts. Getting this framework up and running will undoubtedly take time, effort and money to accomplish. Nevertheless, cell phone technology holds the key to answering questions that will help to quickly determine the outcome of a personal injury case, easing the burden on the legal system, and saving law firms and their clients time and money.
The author of this article is not a certified cell phone forensics expert. The reader is strongly encouraged to undertake his or her own research. Cell phone technology is complex, varies depending on the operating system and manufacturer, and constantly changing. This article is not intended to give legal advice. The author of this article does not use a cell phone whatsoever while driving a car or riding his motorcycle, and encourages everyone to refrain from cell phone use while operating a vehicle!