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Will Police Check My Phone If I Get Into An Accident?

Cell Phone Privacy RightsThe Massachusetts distracted driving law bans drivers from using cell phones and other electronic devices while driving, unless the devices are in hands-free mode. Breaking this law is a primary offense, and police can pull over drivers who are breaking the rules. But what if you get into an accident? Can police check your phone to see if you’ve been texting or making calls?

What if another driver causes the accident? Can the police look at their phone for signs of activity? Keep reading for a look at police car search rights and how they affect cell phone privacy for drivers and accident victims.

Police Car Search Rights

Generally, police cannot search your home or other personal property unless they have a search warrant — the fourth amendment guarantees this right. But there is an exception for vehicles. If the police have probable cause to believe you have contraband in your vehicle, they can do a search without a warrant.

This exception only exists to reduce the threat of people driving off with contraband in their vehicles, but police car search rights do not apply to phones.

Even if the police arrest you and seize your phone, they cannot search the phone. Police are also not allowed to search your phone’s contents while doing a legal search of your vehicle. They can only search your phone in the following situations:

  • If they have a warrant
  • If you consent to them searching your phone
  • If the information is in plain view

The plain view rule simply means that the police can use information they see in plain view on the phone. For example, if the home screen of your phone shows that you just sent a text, the police can take that piece of evidence into account. They cannot pick up the phone, unlock it, and look through your message history unless they have your consent or a warrant.

Limitations With Phone Records May Make Way For New Textalyzer Technology

If you’re a victim in an accident and you believe the other driver was using their phone, you need to establish that fact as you build your case. Ideally, you want law enforcement to obtain a warrant so that they can check the driver’s phone, but often, phone records only show calls and texts. They don’t reveal if the driver was using other apps.

Relatively new technology called the Textalyzer may be able to help. Similar to a breathalyzer, a Textalyzer allows law enforcement to check people’s phones at the site of the accident. At the time of writing, the technology is not used by police in Massachusetts.

Privacy vs. Enforcement

When making decisions on whether or not to provide police with technology such as textylzyers, lawmakers take into account both privacy and enforcement issues. On one hand, if police have this technology, they can easily assess if someone was illegally using their phone. Similarly, if you’re trying to bring forward a personal injury claim, these details can be essential.

On the other hand, everyone has a right to a certain amount of privacy, and privacy advocates argue that giving police these tools may compromise privacy. In response, proponents of the technology claim that the Textalyzer respects privacy because it only captures time-stamped swipes and taps. It doesn’t download content.

What You Should Do After An Accident

If you have been in an accident in Massachusetts, use these tips to protect yourself:

  • Move vehicles and people off the roadway and to a safe location.
  • Do not get out of the vehicle unless it is safe to do so.
  • Call the authorities — always create a police record. Do not just exchange details and leave the site of the accident.
  • Take notes about the accident including location, vehicles involved, and what happened.
  • Get contact details from authorities, other drivers, and witnesses.
  • Do not admit fault.
  • Remember that police cannot search your phone without a warrant. Do not consent to them checking your phone. Even if you didn’t cause the accident, you may be held partially responsible in a civil lawsuit if the police see that you were using your phone.
  • Reach out to your insurance company to start a claim.
  • Contact an attorney. If you’ve been injured due to another driver’s negligence (including using their phone while driving), you may be able to bring a personal injury case against them.

Get Help After an Accident With a Distracted Driver

If you have been injured in an accident, you may be entitled to compensation to cover your medical bills and other damages. Dealing with the physical and mental toll of an accident can be hard, but we may be able to help.

To set up a no-cost case evaluation, contact us at (978) 744-8000. At Mazow | McCullough,PC. We will carefully examine your case and discuss your options.

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