Should checking phone records after serious crashes be standard practice? 

Police currently need a search warrant before they can check to see whether distracted driving was a factor.

click to enlarge Nationally, nearly 3,200 people were killed and around 431,000 were injured in crashes involving distracted drivers in 2014. - JEAN LACHAT/SUN-TIMES
  • Nationally, nearly 3,200 people were killed and around 431,000 were injured in crashes involving distracted drivers in 2014.
  • Jean Lachat/Sun-Times

In September 2006, Matthew Wilhelm, a 25-year-old mechanical engineering graduate who worked for Caterpillar, was cycling on the shoulder of a two-lane highway east of Urbana when he was fatally struck from behind. Police said the driver, 19-year-old Jennifer Stark, was downloading a ringtone on her cell phone at the time, and she was so far off the road that she hit Wilhelm with the driver's side of the car. She had three recent convictions for speeding and blowing a red light.

Since there was no state law against texting behind the wheel at the time of Wilhem's death, Champaign County state's attorney Julia Rietz decided that there were no grounds to prosecute Stark for reckless driving or reckless homicide. As a result, the motorist was only convicted of improper lane use and received just six months probation and a $1,000 fine—a slap on the wrist.

In response to the tragedy, Wilhelm's parents, Chuck and Gloria, lobbied for the state legislation banning texting, instant messaging, and accessing websites while driving, with some exceptions for police officers and truckers. The bill, called "Matt's Law," went into effect in 2010.

Now, using an electronic device while driving garners Illinois drivers a $75 fine. But if a crash results in serious injuries,the driver can be convicted of a Class A misdemeanor, punishable by fines of up to $2,500 or a year in jail. And if the collision results in a death, there are grounds for a Class 2 felony with the potential for fines of more than $25,000 and a jail sentence of seven years. Similar legislation exist in all but four states.

And yet in 2014 there were 3,179 people killed and an estimated 431,000 injured in crashes involving distracted drivers, according to the National Highway Traffic Safety Administration.

In a surprisingly on-point op-ed recently published by the Tribune, the paper's editorial board argued that, just as Mothers Against Drunk Driving successfully campaigned for stiffer penalties for DUIs in the 1980s, we need a new movement to make texting and driving socially unacceptable.

However, Streetsblog reader Anna Weaver noted that the Tribune piece didn't address a basic question: When there's a serious or fatal crash in the Chicago region, how common is it for the police to examine the driver's cell phone to determine whether distracted driving may have played a role? It's good that Illinois has penalties for texting and driving. But if it's the case that Matt's Law is rarely enforced after major collisions, that undermines its power as a deterrent.

Weaver's question is especially relevant in cases where a pedestrian or bicyclist is killed. Since the victim isn't alive to tell his or her side of the story, if the driver wasn't obviously intoxicated or speeding, police may be inclined to take his or her word that the the dead person "darted" or "swerved" in front of the vehicle. Routinely checking cell records could counter those claims.

Here's what I learned from talking to local law enforcement: According to Chicago Police Department spokesman José Estrada, if there's evidence—such as witness testimony or security camera footage—that a driver was using a phone or other mobile device prior to a serious crash, CPD's Major Accidents Investigation Unit will seek a court order to view the driver's phone records. Officers may confiscate and inventory the device postcrash, but they can't look through its call log without a court order. And receiving permission isn't a given.

"Just like any search warrant, [the Major Accidents division] has to go through an approval process, and the orders aren't always granted," Estrada says.

CPD also indicated that Major Accidents almost always tries to check cell phone records after serious crashes if there is evidence of distracted driving, but almost never does in the absence of evidence. CPD declined to estimate what percentage of search warrant requests are denied.



This process is the same for state troopers, according to Illinois State Police spokesman Matt Boerwinkle. While investigators will try to access phone records if there's evidence that distracted driving was a factor in a crash, they don't do so after every serious collision.

"It's not practical to get a search warrant signed in most instances," Boerwinkle wrote via e-mail, signing off with the slogan "A text can wait. Drop It and Drive."

So local police generally don't try to check phone records unless there's clear evidence that a driver was using a device. But should it be required for them to do this after every serious crash? And, if so, how do we make that happen?

"A rule like that would act as a deterrent," argues Dan Terleckyj, an attorney with Chicago-based Klest Injury Law Firm. "If people knew that every time there's [a serious collision] their phone records will be checked, fewer people would text and drive. That would result in fewer injuries or deaths caused by distracted drivers."

But if the city or state police departments tried to change their policy, or if legislation requiring them to do so was proposed, they'd still have to contend with existing legal precedent. The reason cops ask for permission is that they have to: the U.S. Supreme Court ruled in 2014 that police need a warrant to search the contents of a suspect's cell phone during an arrest. In April, citing the Supreme Court decision as precedent, a federal judge in Illinois ruled that cops need a warrant even to open a suspect's flip phone and look at its screen, even if the phone is off.

That likely means that it would be difficult if not impossible to waive the necessity of court permission to search a phone after a major crash. Still, I'd argue that law enforcement agencies could develop policies whereby the warrants were automatically requested after major crashes, even if the courts ultimately decided not to grant them for lack of evidence.

I think we should at least try to make this happen, but others don't share my optimism about the endeavor. Rita Kreslin, director of the Schaumburg-based Alliance Against Intoxicated Motorists, says more needs to be done to address our national epidemic of distracted driving, but she doesn't see a more forceful crackdown on texting behind the wheel happening anytime soon.

"A lot more people will probably have to be hurt or killed before the laws change drastically," Kreslin says.

While it might be difficult to make checking cell phone records after serious crashes standard practice at this point, hopefully this is something that will be considered in the future. Our obsession with our phones doesn't show any sign of letting up.   v

John Greenfield edits the transportation news website Streetsblog Chicago.


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