Was the other driver texting? Evidence that can prove it after an Austin crash

You suspect the driver who hit you was on their phone. That suspicion is worth pursuing. Phone records, eyewitness accounts, and vehicle data have proven distracted driving in Travis County courtrooms, and the evidence exists right now, sitting in servers and dashboards that delete or overwrite themselves on a schedule.

The window to preserve it is short.

What Texas law says about texting while driving

Texas banned handheld texting while driving statewide in 2017. A driver who sends or reads a text message behind the wheel has broken the law. That statutory violation matters in your civil case because it can support a negligence claim and, in some circumstances, a finding that the driver acted with gross negligence, which opens the door to exemplary damages beyond your medical bills.

You don't need a criminal conviction to use this in a civil case. You just need evidence showing the phone was in use at the time of impact.

Phone records: the single most direct piece of evidence

A cell phone carrier keeps call and data logs. Those logs show, to the minute, whether a phone was sending texts, opening apps, or transferring data. If the other driver's phone was active at the time of your crash, that timestamp can be placed next to the crash time on your CR-3 report and compared.

Getting those records requires a subpoena. You can't request them yourself. An attorney files a lawsuit or sends a preservation letter, then subpoenas the carrier. Carriers typically retain detailed metadata for a year to 18 months depending on the plan and carrier. After that, the data compresses or disappears entirely. So if your crash happened three months ago, those records still exist. Six months from now, they may not.

The physical phone itself also stores data. A forensic extraction can pull deleted texts, app usage timestamps, and screen-wake events. If the other driver's phone shows a screen-wake at 2:17 p.m. and your crash happened at 2:17 p.m. at I-35 and Ben White, that's not a coincidence. It's a data point that's hard to explain away.

Eyewitness accounts before they fade

Someone at the scene may have seen the driver looking down before impact. A passenger in another car. A cyclist on the Barton Creek Greenbelt trail crossing. A pedestrian waiting at a light on South Congress.

Witness memories degrade fast. Two weeks after a crash, details that felt sharp start to blur. A statement taken at 72 hours is far more reliable than one taken at six months. If you have the contact information of anyone who stopped or was nearby, share it with an attorney immediately.

Traffic camera footage compounds this. The City of Austin runs cameras at major intersections, and TxDOT manages cameras along I-35 and MoPac. Most systems overwrite footage on a 30-day cycle. Once it's gone, it's gone. A preservation letter sent to the City or TxDOT within the first two weeks can freeze that footage before it overwrites.

Vehicle data you might not know exists

Modern vehicles record far more than most drivers realize. The event data recorder (EDR), sometimes called a black box, captures vehicle speed, brake application, steering input, and seatbelt status in the seconds before a crash. Some systems also log whether the driver's phone was paired via Bluetooth at the time of impact, which puts the phone in hand's reach of the driver even if it doesn't prove they were looking at it.

Infotainment systems are worth examining too. If the other driver was using a navigation app or music streaming service that was actively receiving data, that activity often logs on the car's system. Sync logs from Ford vehicles, for instance, or connected-services data from GM's OnStar, can be subpoenaed through litigation.

The challenge is that most of these systems overwrite their logs periodically or when the vehicle is repaired. If the at-fault driver's car went into a shop after the crash, data may already be compromised. A preservation letter or litigation hold notice sent to the driver and their insurer within days of the crash puts them on notice that destroying or allowing the loss of that data could constitute spoliation.

Social media and location data

Unusual sources sometimes fill gaps. If the other driver posted to Instagram or sent a Snapchat in the minutes before impact, that metadata is timestamped and geotagged. Posts from around the time and location of your crash, obtained through discovery, have surfaced in Texas cases.

Location history from Google Maps or Apple Maps is another source. Both platforms log location pings tied to timestamps when the phone's location services are active. A defense attorney will fight to keep this out of discovery, but courts have ordered production of location history in distracted driving cases where the relevance was clear.

The crash report is your starting point

The Austin Police Department CR-3 crash report may already note that an officer suspected phone use. If the investigating officer saw the phone visible, noted evasive braking patterns, or recorded a witness statement about distraction, that goes in the narrative section. If you haven't read your CR-3 closely yet, how to read your Texas crash report walks through each field and where to find the officer's observations.

A citation for the texting violation, if issued, will also appear on the report. Even if no citation was issued, the officer's written observations stay in the record.

How comparative fault plays into this

Texas uses a proportionate responsibility system. If the other driver was texting, that weighs heavily toward placing fault on them. But the defense will look for any conduct on your part to offset that. Were you speeding? Changing lanes without signaling?

The 51% bar means you can recover damages as long as you're found 51% or less at fault. Evidence of the other driver's phone use doesn't just establish their negligence -- it also shapes how a jury distributes fault between both parties. Strong phone evidence can move that number significantly in your favor. You can read more about how Texas comparative fault works if you want to understand how percentages translate to dollars.

What to do right now

Write down everything you remember about the crash, including the time to the minute. If you saw the other driver looking at a screen, write that down. If witnesses gave you their names or numbers, save them. If you took photos at the scene, back them up somewhere the phone can't auto-delete them.

Then contact an attorney before that 30-day camera window closes.

Jackson & Aguirre works on a contingency fee basis. The fee comes out of any recovery, not out of your pocket.

Anselmo Aguirre handles a small caseload by design, which means if you call the firm, you talk to him directly. If you were hit by a distracted driver on I-35, East Riverside, or anywhere else in Travis or Williamson County and want to know whether the evidence is still retrievable, that's the right first conversation to have.