As you read this, it’s highly likely you have either been in a crash or soon will be. The Federal Motor Carrier Safety Administration (FMSCA) reported that in 2020, of the approximately 415,000 police-reported crashes involving large trucks, 4,444 (1 percent) of them were fatal crashes and 101,000 (24 percent) of them were crashes with injuries. The FMCSA also found that about 71 percent of these accidents were caused by distracted drivers. While these numbers alone are cause for concern, the truly unsettling part is how much of this is out of the control of truck drivers. In fact, a National Highway Traffic Safety Administration (NHTSA) study found the percentage of car-caused truck accidents is 90%.

Driving requires you to be alert and focused, but long hours can be hard on the body and the mind. A great, but often dismissed, threat to a driver’s safety is boredom. A driver who lacks enough stimulation while driving will begin to lose focus and undergo the process of self-distraction in which the mind wanders. Boredom can also cause a driver to feel fatigued and drowsy. To counter the effects of boredom, drivers turn to technology, with more options than ever at their fingertips. As much as technology has improved the job of a driver, it can also create substantial problems as well.

As a driver, you do everything you can to ensure a collision does not occur in the first place and drive between the lines of distraction and boredom. It’s well known that a verdict for a crash resulting from a distracted truck driver can be enough to put a carrier out of business, and all its drivers out of work. So, drivers use hands-free devices to speak on the phone, they listen to audio while not messing with any equipment, and nobody watch videos while driving. However, thinking defensively about how to protect yourself in the event you fall victim to a crash, you also need to understand there is a difference between what you are doing and what the data of your device says you are doing, because they may not be the same thing.

Even the smallest collision can turn into a lawsuit. Initially, it may seem like nothing will come of the fender-bender, but the other driver may start to think about the costs of repair and perhaps is influenced by family and friends who recommend a lawsuit. If your collision turns into litigation, the other party will be able to access a great amount of information through the discovery process. The information requested will range from your employment file, background check, and because so many accidents involve distracted drivers the other side will seek your device information. Although the other side will seek all device information in your truck, for purposes of this article we will focus on your phone. While there will be attempts to protect your privacy, you should assume that the courts decide that the other side will be able to get your phone information so they can confirm whether you were driving while distracted. In the event this is a criminal matter, law enforcement will take a deep dive using manual, logical, and file system and physical acquisition.

The other side will usually pull the phone bill and call detail records of your phone. The phone bill is limited in information as it only shows billable activity, rounds off time of use, and bills vary in how they show calls sent to voicemail. You did everything right, but what does a jury see? The record of your hands-free call appears the same as any other call. A call you let go to voicemail may show up as a received call making it appear as though you were on the phone. The text message you used your phone to read aloud to you, may show up as any other read text. The auto-reply email may show as both reading a text as well as responding. The data can give a false impression that you were on your phone, talking and texting when you were not.

The other side will also seek your phone’s call details as they show data transmission, which usually indicates user activity based on the amount of data transmitted. Your device transmits data all the time because of various applications on your device running in the background, and aside from the hint of amount of the data transmitted, the data is indistinguishable. The inability to distinguish data also comes into play when you listen to music via a video application like YouTube. While you may simply be listening to the music, the data coupled with an indication the application was open will present to the jury as if you were driving while watching a movie.

So, what can you do? Continue to use hands free devices – it is the law and can keep you out of a collision in the first place. It would be best to have your phone send back an automatic text while you’re driving stating that you were unavailable, and if the conversation needs to happen use your hands-free phone to call. While it may appear a text was received and sent with an automatic reply, this information can be pulled from the phone to show what occurred. Many applications that play videos also have an audio-only setting which not only cuts the rate of data transmitted but it can also be shown to the jury that you were not watching a video. Of course, using only audio streaming services is always recommended.

In our effort to address your real-world and practical legal concerns, the topic of this article comes from questions received from drivers at a recent safety talk given to one of our clients.

If you have any questions about this article, or about MetaData in general, please contact Michael Jacquez (mjacquez@setlifflaw.com) at (804) 377-1262, or Steve Setliff (ssetliff@setlifflaw.com) at (804) 377-1261.