With records, not suspicion. Phone carrier records, app and device data, video, witness accounts, and the timing of the crash can show the driver was texting or using the phone. Those records are obtained through a preservation letter and legal process in the case, and Texas bans reading, writing, or sending electronic messages while driving.
Texas law makes phone use while driving relevant. Transportation Code section 545.4251 prohibits using a portable wireless communication device to read, write, or send an electronic message while operating a vehicle unless it is stopped. Commercial drivers face stricter federal rules: 49 CFR 392.80 prohibits texting while driving a commercial motor vehicle, and 392.82 prohibits using a hand-held mobile telephone.
The strongest proof is the phone’s own history. Carrier records show calls, texts, and data sessions with timestamps. Device data and app records can show typing, messaging, social media, or navigation activity. Matched against the crash time from the police report, 911 calls, and the vehicle’s event data recorder, those records can place the phone in use at the moment of impact.
Those records are not available on request. They are obtained through discovery and subpoenas once a claim is in litigation, often under a protective order. That is why a preservation letter matters early: it puts the driver and their carrier on notice not to delete or replace the phone or its data.
Other evidence fills in the picture. Witnesses often see a driver looking down. Dashcams, nearby business cameras, and traffic cameras may show it. The crash itself can be telling: no braking before a rear-end collision, drifting out of a lane, or failing to react to a light that changed seconds earlier. Police may note an admission or a phone found in the driver’s hand.
Hands-free use is a gray area under the statewide statute, which targets reading, writing, and sending electronic messages. Even when a driver’s phone use was technically legal, evidence that the driver was distracted can still support negligence, because every driver must keep a proper lookout and control of the vehicle.
Proving distraction can raise the value of a claim and affect fault. Owsley Law Firm sends preservation demands, pursues the records through the case, and charges no fee unless it wins.
What to do, step by step
- Write down anything you saw the driver doing.
- Get names of witnesses.
- Ask nearby businesses to keep video.
- Have a lawyer send a preservation letter covering the phone and its data.
- Request phone records through the case.
Commercial drivers leave more evidence. Fleet telematics and in-cab cameras often record driver behavior, and federal rules prohibit hand-held phone use in commercial vehicles, so a trucking company’s own records can show distraction.
Your own phone matters too. Expect the defense to ask for your records, and be careful about what you say and post after a crash.
Timing analysis is often what wins these cases. Matching a text sent seconds before impact to the event data recorder’s record of no braking can show distraction more convincingly than any witness.
Mistakes that cost people money
- Accusing the driver at the scene instead of documenting.
- Failing to ask for a preservation letter early.
- Not checking for nearby video.
- Posting about the crash on social media.
Related questions
Can I get the other driver’s phone records myself?
Usually not. Records are obtained through subpoenas or discovery once a claim is in litigation.
Is talking on the phone illegal while driving in Texas?
The statewide law bans reading, writing, or sending electronic messages while driving. Other phone restrictions apply in school zones and for commercial and new drivers.
Does proving texting increase my settlement?
It can, by strengthening fault and supporting arguments about the driver’s carelessness.
What if the driver denies using the phone?
Records usually decide it. Carrier and device data with timestamps are harder to dispute than testimony.
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