My wife was involved in a motor vehicle collision – she was in the centre lane and had a vehicle cross over the lane markings and side swipe her from the left. Our insurance has still not come to the determination that the accident was no fault of my wife, as she was hit from her rear bumper and up the left side of her vehicle, up to the middle of her driver side door. Is it possible to obtain the cellphone records of the other motorist to confirm or discount distracted driving as the cause of the accident – that is, the other driver texting/e-mailing while driving? – Ilija
Even if a telltale text were lurking in a driver's cellphone records, police would need a warrant – and a good reason – to look for it, Toronto Police say.
"Records for the cellphone would not be easy to obtain unless a warrant was issued by a justice of the peace," says Traffic Services Const. Clint Stibbe in an e-mail. "There would be virtually no chance a warrant would be issued for a fishing expedition to see if the individual was on the phone."
In other words, police would need to show a reason to suspect the driver was texting, e-mailing or playing Candy Crush when he hit you – and not just be checking on a whim.
You or I couldn't access another driver's cellphone records, says the Insurance Bureau of Canada.
"The general public cannot request them due to privacy laws," says IBC spokesman Pete Karageorgos in an e-mail. "Insurance adjusters cannot request them either as a regular matter of investigation a claim."
If there was evidence of distracted driving – like a witness or a dashcam video – police could charge the driver under section 78 or 78.1 of Ontario's Highway Traffic Act. That would mean a $280 fine for the driver.
But would a conviction make a difference when the insurance company is figuring out who's at fault? Possibly, Karageorgos says.
"Insurance adjusters will consider the facts of the crash and are guided by fault determination rules – which set out fault for crashes which occur in most scenarios," Karageorgos says. "A driver being on the phone and charged (and) convicted of distracted driving would be a factor the adjuster may use to assess fault."
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