You remember the sound of the crash, but you might not remember the ten seconds before it. The other driver does. And so does their phone that was wedged against the steering wheel on NM 599.
Here is the problem. Nobody hands you those cell phone records.
If the other driver says a deer ran out, and there were no witnesses because it was 10:40 p.m. on a two-lane highway in Rio Arriba County, the police report may end there. Meanwhile, the cell phone data that tells the real story is sitting on servers, and some of it could be gone within a week. This evidence could make the difference between you being compensated fairly and not being compensated.
In This Article
Our car accident injury lawyer, Marc A. Grano, explains what a digital evidence audit is, where the evidence actually lives, how long you have before it disappears, and what steps to take to preserve your rights after an accident. Grano Law Offices, P.C. wrote this post for people who were injured in a crash (or their worried loved ones) and are beginning to research their legal options and rights in general.
Table of Contents
What Is a Digital Cell Phone Evidence Audit?
A digital cell phone evidence audit is a forensic review of all electronic records generated at or near the scene of a crash. Lawyers request audits under NMSA § 66-7-374 since a person may not read or view a text message or manually type on a handheld mobile communication device for any non-emergency purpose while driving—an audit attempts to determine if any of these activities occurred during your accident. These audits are usually performed during severe personal injury and wrongful death matters.
Digital cell phone evidence may come from:
- At-fault driver phone records
- Your phone records
- Vehicle computers connected to the phone
- Cell phone carrier records
- App or cloud data
- Other cell phone records
The goal of the audit is to reconstruct what each driver was doing before impact and to do so in a way that withstands a court challenge. The information gathered from cell phone records will help your car accident attorney determine whether the at-fault driver was distracted or engaged in illegal activity while driving, enabling them to prove negligence and liability.
What Types of Crash Evidence Does a Cell Phone Provide?
Cell phone crash evidence is limited to data regarding the use of a handheld device, rather than to actual content (such as private text messages), under 18 U.S.C. § 2701, also known as the Federal Stored Communications Act. The Act restricts when a provider may divulge the personal contents of a communication. What your lawyer can get is the data that provides account holder identity, dates and times, and originating cell phone numbers.
Below, Table 1 illustrates each type of evidence, what it could reveal, and how long it may be available to obtain for evidentiary purposes:
| Source | What It Shows | Survival Window |
| The handset itself | Screen unlocks, app launches, notifications received, keyboard activity, Do Not Disturb While Driving status, photos, motion sensor data | Indefinite if preserved — but lost to a factory reset, a trade-in, or automatic cleanup |
| Call and text records | Numbers, direction, exact timestamps, duration, tower and sector | Often about a year at major carriers; varies by carrier and record type |
| Cloud and app data | iCloud or Google backups, Screen Time reports, Life360, Strava, rideshare and delivery apps, social posts with timestamps | Wildly variable; some services purge in 30 to 90 days |
| Vehicle infotainment system | Paired devices, call logs and contacts synced from a phone, GPS track logs, door, gear, and ignition events. | Until overwritten by later use — or until the vehicle is repaired, sold, or crushed |
As you can see, there is a wealth of information your attorney can gather from data alone to prove the at-fault driver caused the accident. However, it is critical to preserve these records as soon as possible, so ensure you seek legal advice to avoid them being deleted. Otherwise, you could receive a lesser settlement or civil award because you did not have enough evidence to prove your allegations against the other driver.
How to Protect Your Rights After a Car Accident in New Mexico
Cell phone record preservation is just one evidentiary aspect of proving that someone else caused your accident. Ensure you take all practical steps to protect your legal rights. Enlist the help of a trustworthy family member or friend to help you handle the aftermath if you are too injured to do so yourself.
If you do nothing else, take these five proactive measures to avoid making mistakes:
- Seek medical care and follow your doctor’s advice: Gaps in and deviations from treatment can be used against you later.
- Request the crash report from police: This information will help you remember key details and provide currently known facts.
- Preserve your cell phone data: Back up your phone after the crash to ensure that you have a record of it.
- Be careful with your words: Decline to give a recorded statement to the other side’s adjuster until you’ve talked to a lawyer.
- Get legal advice: Talk to a lawyer early, even if only to understand what’s on the table. Most initial consultations cost nothing.
Speaking with a car accident law firm, such as Grano Law Offices, P.C., is essential after a car accident injury because these cases are serious. Because of your injuries, insurers and liable parties will take every opportunity they can to shift the blame onto you, since New Mexico follows pure comparative negligence rules. Essentially, you could be responsible for a share of your damages, including medical bills, lost wages, and more, if they can prove you were partially responsible for the accident and resulting injuries.
Were You Injured by a Driver in Northern or Central New Mexico?
If so, you have legal rights. Grano Law Offices, P.C. helps injured people across northern and central New Mexico — San Miguel, Mora, Rio Arriba, Santa Fe, Taos, Colfax, and Guadalupe counties. Marc A. Grano has practiced in New Mexico courts for more than 25 years and knows that digital evidence requires a solid foundation, methodology, chain of custody, and the ability to convince a jury.
Get Advice During a Free Case Review
A conversation about your accident with Grano Law Offices, P.C. costs nothing. Call (505) 426-8711 or send a message below to schedule a free case review. If you hire us, we do not charge upfront attorneys’ fees and only get paid when you win.
