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Can Police Look At A Phone After An Accident?


When an automobile accident occurs, one of the first things that everyone, be it victims, lawyers, insurance companies or the law will want to know is the cause of the accident. There are only a few recurring causes for accidents in most automobile cases, and while drunk driving is, thankfully, continuing to decrease as a common cause, distracted driving, for better or for worse, is on the rise, seemingly getting ready to take drunk driving’s place in the most common automobile-related tragedy on the road.

But there is one critical difference. A drunk driving accident can be easily traced in terms of cause. If a police officer on the scene has even the tiniest suspicion that one of the drivers involved in the accident may be drunk, that officer has full legal power to demand a test for sobriety. All drivers MUST accept a sobriety test as a form of “implied consent,” when they accepted their license to drive. Should a driver refuse to comply with a sobriety test for alcohol in their system, they face the suspension of their license. The law, in other words, has great legal powers when it comes to protecting others on the road from drunk drivers.

The same, unfortunately, does not currently hold true for the key piece of evidence in a distracted driving accident, a phone.

The Distracted Driving Difference

While accidents related to drunkenness are a direct result of impaired judgement and reflexes due to alcohol in the bloodstream, distracted driving is the simple result of neglect. People while driving pick up their phones and use them to talk, text, or even take photographs or videos of themselves. There is one particularly embarrassing story from January of this year in Michigan where a fatal car accident resulted in a man being thrown from his vehicle after the collision, and not surviving the experience. He was found with his pants down, and on his phone police found that it was playing a pornographic video. It was deduced that he had pulled down his pants and watched pornography while driving and was thus unable to properly control the car which then went out of control.

In all of these cases, an accident could easily have been avoided if people had simply fulfilled their basic civic responsibility of driving safely and paying attention to conditions on the road. Instead, in an attempt to keep themselves amused, they resorted to entertaining themselves in some fashion with their phone, leading to the accident. Because of bizarre tragedies like this, distracted driving is punishable in Florida with a $30 fine, although you cannot be stopped by police officers if you are seen texting. However, if it can be added as a secondary violation if you are caught doing other illegal activities such as speeding.

This doesn’t do much to help fight distracted driving’s more serious consequences. Every day in the United States, eight people die as a result of distracted driving related accidents. Over 1100 people get injured because of it. However, in cases where distracted driving may be a suspected cause of an accident, even if there is evidence on a phone of the illegal act, a police officer on the scene can do nothing about it.

Privacy And Guilt

In essence, a smartphone in Florida has the same legal protection as a house. It cannot be searched without a warrant or consent of the owner. The precedent was established in the case of Cedric Smallwood, in Jacksonville. In 2008, he was suspected of robbing $15000 from a convenience store. When police caught up with him, they seized his phone and searched it, finding incriminating photos of the gun used in the robbery, Smallwood’s girlfriend with the money, and photos of the gun and the stolen money, all conveniently time-stamped by the camera.

Unfortunately, Smallwood challenged that his constitutional rights and privacy were violated by the police searching his phone without warrant or his consent, and Florida courts upheld his claim. Because phones are now powerful enough computational devices that they can store enormous amounts of personal information, they are now considered the same as a home, and police need permission to search it.

This is particularly troubling in a distracted driving accident as text messages, photographs, videos, or other evidence can be especially incriminating. An officer being able to search a phone on the scene and finding such evidence could settle a case of personal injury very quickly. Unfortunately, privacy laws protect even people that have done wrong in such instances, which can make a case a bit more difficult.

If you’ve been involved in an auto accident where you know you were the victim of distracted driving, an experienced personal injury lawyer will be a valuable source of guidance and support during this trying time. Get the professional help you need.

Attorney David Goldman has a strong belief that everyone should be treated fairly and those with the means should do what they can to bring justice in all areas of our society. That belief has led him to help Florida's injured from being taken advantage of by corporations and insurance companies. Since 1989 David Goldman has been fighting for the rights of Floridians both as an attorney and by personally supporting our community.

Can Police Look At A Phone After An Accident?

Goldman Babboni Fernandez
Murphy & Walsh




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