What If the At-Fault Driver Was Texting?

The Bottom Line

If the driver who hit you was texting, that is strong evidence of negligence in NC. The state bans texting while driving under N.C. Gen. Stat. 20-137.4A, and violating this law is evidence of negligence per se. But proving the other driver was texting requires specific evidence -- cell phone records, witness testimony, or the police report. Understanding how to obtain and use this evidence is critical to strengthening your claim.

NC's Texting Ban: What the Law Actually Says

North Carolina prohibits all drivers from using a mobile phone to read or send text messages or email while the vehicle is in motion on a public road.

A few important details about this law:

• It applies to all drivers -- there is no age restriction. Teenagers, adults, and commercial drivers are all covered
• It is a primary offense -- an officer can pull a driver over solely for texting, without needing another traffic violation
• The criminal penalty is relatively modest -- a $100 fine plus court costs
• It covers texting and email but not all phone use -- NC notably does not ban handheld phone calls for drivers 18 and older

The criminal fine is small. But the civil implications for an accident claim are where this law carries real weight.

Texting as Negligence Per Se

This is the most important legal concept if the other driver was texting when they hit you. Negligence per se means that violating a safety statute is treated as automatic evidence of negligence. You do not have to prove the driver was being careless or unreasonable in the way they were using their phone. You only need to establish two things:

1. The driver violated the statute -- they were texting while driving in violation of 20-137.4A
2. The violation caused or contributed to the accident -- their texting is what led them to run the red light, drift into your lane, or rear-end you

When negligence per se applies, the question shifts from "Was the driver being unreasonable?" to "Did the driver violate the law?" That is a much simpler and more powerful argument.

How to Prove the Other Driver Was Texting

Knowing the other driver was texting and proving it are two different things. Here are the primary sources of evidence.

Cell Phone Records

Cell phone records are the most direct proof of texting. Carrier records show the exact times text messages were sent and received, which can be matched against the time of the accident. If the other driver sent a text at 3:42 PM and the accident occurred at 3:42 PM, that is powerful evidence.

How to obtain them: Cell phone records typically require a subpoena, which means you generally need to file a lawsuit -- or at least have an attorney threaten litigation -- to get them. Insurance companies cannot subpoena records on their own during the pre-litigation claims process.

What they show and do not show: Carrier records confirm that a message was sent or received at a specific time. They do not always show who was physically typing. If the other driver claims a passenger was holding their phone, additional evidence is needed to counter that argument.

App Usage Data

Cell phone records from the carrier only cover traditional calls and texts. But modern distracted driving often involves apps -- social media, Snapchat, Instagram, TikTok, or navigation apps. Getting app usage data may require a forensic examination of the phone itself or records subpoenaed directly from the app provider.

If a driver was posting to Instagram or scrolling through Snapchat at the time of the crash, that data can be even more damaging than a simple text message because it shows sustained visual distraction -- the driver was looking at the screen, not the road.

Witness Testimony

Witnesses who saw the other driver looking down at their phone, holding a phone in front of their face, or appearing distracted before the crash provide valuable testimony. This evidence is especially useful in the early stages of a claim before cell phone records are available.

At the scene, ask witnesses specifically:

• Did you see the other driver using a phone?
• Were they looking down or holding something before the crash?
• Did they appear distracted?

If witnesses confirm phone use, make sure that information is included in the police report.

The Police Report

The responding officer's observations can be critical. Officers are trained to look for signs of distracted driving. The police report may note:

• The driver was holding a phone when the officer arrived
• A phone was found on the driver's lap or seat after the crash
• The driver admitted to texting or using their phone
• A distracted driving citation was issued

If the officer noted phone use in the report, that becomes part of the official record and is difficult for the other driver to dispute.

Dashcam Footage

If you have a dashcam, the footage may show the other driver looking down at their lap or holding a phone in the moments before the collision. While a forward-facing dashcam is unlikely to capture the interior of the other vehicle clearly, it can sometimes show a driver's posture, head position, or the glow of a phone screen. For more on how dashcam evidence works in NC, see our guide on dashcam footage in car accident claims.

Admission by the Other Driver

Sometimes the other driver admits to texting at the scene. They may say "I was looking at my phone" or "I was checking a message." If you hear this, write it down immediately and tell the responding officer. Admissions made at the scene are admissible evidence and can be decisive.

How Texting Strengthens Your Claim

Proving the other driver was texting does more than establish basic negligence. It strengthens your claim in several ways.

Liability is harder to dispute. When a driver violated a specific safety statute, the insurance company has less room to argue that their driver was not at fault. The violation itself is evidence of negligence.

The narrative favors you. Insurance adjusters, mediators, and jurors understand the danger of texting while driving. A texting driver is sympathetic to no one. This social reality puts pressure on the insurance company to resolve your claim fairly rather than risk a trial.

Punitive damages may be available. In cases involving serious injury or death, texting while driving may support a claim for punitive damages under NC law. Punitive damages require "willful or wanton" conduct -- a conscious disregard for the safety of others. A driver who chose to text while operating a vehicle, knowing the risks, may meet that standard. Punitive damages are capped in NC at the greater of $250,000 or three times compensatory damages, but they can significantly increase the total recovery.

The Contributory Negligence Problem: Were You on Your Phone Too?

This is the question the insurance company will ask immediately. In North Carolina, contributory negligence means that if you were also at fault in any way -- even 1% -- your entire claim can be denied.

If you were also on your phone at the time of the accident, even in a way that seems minor, the insurance company will use that against you:

• Checking a text or notification -- even a quick glance
• Using GPS or navigation -- if it distracted you from the road
• Talking on the phone -- while not illegal for adults in NC, it can still be argued as distraction
• Using any app -- social media, music, anything that took your attention off driving

This is one of the most important reasons to never use your phone while driving in NC. Beyond the obvious safety concerns, any phone use creates a permanent record that can be used to destroy an otherwise strong claim.

What to Do If You Believe the Other Driver Was Texting

1. Tell the responding officer -- mention what you observed about the other driver's behavior before the crash
2. Gather witness information -- anyone who saw the other driver on their phone
3. Preserve your own evidence -- dashcam footage, photos of the scene, your own phone records showing you were not using your phone
4. Do not confront the other driver about their phone use -- let the evidence speak. Confrontation at the scene can backfire
5. Request the police report and check whether distraction was noted
6. Consult an attorney early -- obtaining cell phone records requires legal process, and an attorney can send a preservation letter to prevent the other driver from deleting data

The earlier you begin building the evidence of texting, the stronger your claim will be. Cell phone data can be deleted, apps can be uninstalled, and memories fade. Acting quickly to preserve evidence is essential.

Frequently Asked Questions

Frequently Asked Questions

Is texting while driving illegal in North Carolina?▾

Yes. Under N.C. Gen. Stat. 20-137.4A, it is illegal for any driver to use a mobile phone to read or send text messages while operating a vehicle on a public road. This is a primary offense, meaning police can pull a driver over solely for texting. The criminal fine is $100 plus court costs, but the civil implications for an accident claim are far more significant.

How can I prove the other driver was texting when they hit me?▾

The most direct evidence is cell phone records obtained through a subpoena during litigation, which show the exact times text messages were sent or received. Other evidence includes witness testimony from people who saw the driver looking at their phone, police report notations about phone use or distraction, dashcam footage, the other driver's own admission at the scene, and app usage data showing activity at the time of the crash.

What does negligence per se mean for a texting driver accident in NC?▾

Negligence per se means that violating a safety statute -- like NC's texting ban -- is treated as automatic evidence of negligence. You do not have to prove the driver was being unreasonable. You only need to show they violated the law and that the violation caused your accident. This significantly strengthens your claim compared to ordinary negligence.

Can my own phone use destroy my claim even if the other driver was texting?▾

Yes. Under NC's contributory negligence rule, if you were also on your phone at the time of the accident -- even glancing at a notification or checking GPS -- the insurance company can argue you were partially at fault. Any fault on your part, no matter how small, can bar your entire claim in North Carolina. Your phone records are just as discoverable as the other driver's.