Yes, you can sue, and in a case where the other driver was texting at the moment of impact, you have the foundation for a strong negligence claim with a specific statutory violation behind it. But the more useful version of that answer addresses something most people asking this question have not yet thought through: proving that the other driver was texting is harder than it sounds, the evidence that proves it is controlled almost entirely by people who have no interest in cooperating with you, and the window during which that evidence exists and can be obtained is shorter than you have any reason to expect. The legal right to bring the claim is straightforward. Getting the evidence that makes the claim winnable is where the real work begins, and that work is most effective when it starts immediately.

Begin with the legal framework. Missouri Revised Statutes Section 304.820 prohibits texting while driving, defined as composing, sending, or reading a text message or electronic communication while operating a motor vehicle on a public road. Violation of this statute in a personal injury context invokes the negligence per se doctrine discussed in the context of other traffic violations. A driver who violates a safety statute, whose violation causes harm to a person the statute was designed to protect, is negligent as a matter of law without requiring the plaintiff to separately prove that the conduct was unreasonable. Texting while driving is unreasonable by statutory definition in Missouri, and a plaintiff injured by a texting driver does not need to convince a jury that looking at a phone while operating a vehicle was a bad idea. They need to prove that it happened. That is the entire challenge in this category of case, and it is a more significant challenge than the legal framework makes it appear.

The other driver is not going to volunteer that they were texting. They may not even admit it to their own insurer. What they will often say at the scene is that they were not on their phone, that they just lost control, that they did not see you, or that road conditions contributed to the collision. Some will say nothing at all and speak only through their attorney and their insurance company afterward. The admission that would make the liability case simple, the driver turning to you at the scene and saying they were texting, happens in a small fraction of these cases and almost never in the ones where the driver has any sophistication about what that admission means. In the absence of a direct admission, the evidence that proves texting at the time of impact comes from specific sources that are not publicly accessible, decay quickly, and require formal legal process to obtain.

The phone records are the evidence that matters most and the evidence that is most consistently underutilized in distracted driving cases. Cell phone carriers maintain records of every text message sent and received by a subscriber, including the timestamp of transmission to the second. Those records can be subpoenaed in litigation, and a subpoena that produces records showing that the other driver sent or received a text message within the same minute the collision occurred is devastating evidence that no defense expert can explain away. The timestamp precision of carrier records is not approximate. It is exact. A text sent at 2:47:33 PM and a collision that occurred at 2:47 PM, established through the emergency dispatch timestamp when the first 911 call was made, constitutes the kind of evidence that resolves cases before trial and before juries ever hear the word negligence.

Here is the distinguishing insight that most people pursuing a distracted driving claim have never been told, and it changes the entire strategic picture of these cases: cell phone carriers are not required to preserve records indefinitely, and the standard retention period for text message metadata varies by carrier but is typically between ninety days and eighteen months for most major carriers. The content of text messages, meaning what was actually written, is retained for even shorter periods by most carriers, often as little as a few days to a few weeks, because message content generates enormous storage demands across hundreds of millions of subscribers. What is retained for longer is the metadata, meaning the timestamp, the sending and receiving number, and the message status, which is sufficient to establish that a transmission occurred at a specific moment without requiring the content of the message itself. Once those records are gone, they are gone. No court order can reconstruct data that no longer exists. This is why the filing of a lawsuit with a litigation hold notice to the carrier, or a pre-suit preservation letter sent through counsel, is not something to do when it becomes convenient. It is something to do as close to the date of the accident as possible, and the attorney’s office that receives your case on Monday should be thinking about carrier preservation on Tuesday.

The practical mechanism for obtaining phone records in litigation is a subpoena served on the carrier, which must identify the subscriber, the relevant phone number, and the time period for which records are sought. Carriers respond to subpoenas but not to informal requests, and they respond on their own timeline, which is typically weeks to months depending on the carrier and the volume of legal requests they are processing. Some carriers have dedicated legal compliance departments that process subpoenas more efficiently than others. All of them require that the subpoena be procedurally proper, meaning it must come from a lawsuit that has been properly filed or from a pre-litigation process authorized by the applicable court rules. This is another reason why having an attorney early in a distracted driving case matters practically rather than theoretically. An attorney can issue or compel a subpoena. A private individual cannot.

The other driver’s phone itself is a separate source of evidence with its own preservation dynamics. Modern smartphones maintain internal logs of application activity, screen unlock history, and communication timestamps that can be extracted through forensic analysis. A forensic examination of the other driver’s phone, conducted by a qualified digital forensics expert, can establish not just whether a message was sent but whether the screen was active, what application was open, and in some cases whether the phone was in the driver’s hand based on the device’s own sensor data. This level of forensic detail is generally not available through carrier records alone, and it becomes increasingly important in cases where carrier records show no text message transmission but the facts of the collision are otherwise consistent with distraction. A driver who was scrolling through a social media application, watching a video, or interacting with a navigation application was distracted in a legally relevant way even if no text message changed hands during the relevant window. Those activities appear in the device’s application logs in ways that carrier records would not capture.

Obtaining the other driver’s phone for forensic examination requires either voluntary cooperation, which is essentially never forthcoming, or a court order in the context of litigation. The court order requires a showing of relevance and proportionality, meaning the plaintiff must establish that there is a reasonable basis to believe the phone contains relevant evidence before a court will compel its production. The facts of the collision itself, combined with any available witness accounts, roadway evidence, or other indicia of distraction, form the basis for that showing. A vehicle that drifted from its lane before impact, that showed no signs of braking, or that struck a stationary object or a clearly visible hazard, presents facts consistent with distraction that support the basis for seeking the device. These cases are made at the discovery stage of litigation, which is another reason why the distracted driving claim is most effectively pursued as a litigated matter rather than an insurance negotiation.

Witness evidence is the third category, and it is both more accessible than electronic evidence and more variable in its reliability. A witness who observed the other driver looking down at their phone before the collision, or who saw them raise their phone to send a message, is an eyewitness to the very act that constitutes the violation. That testimony, if credible and consistent with other evidence, is powerful. Witnesses at accident scenes are sometimes willing to provide information to law enforcement at the scene and then become difficult to locate afterward. The contact information of every witness who spoke to police at the scene, along with anyone else present who was not interviewed by officers, should be collected immediately. A witness who provides a detailed account at the scene and cannot be located six months later when depositions begin is a lost evidentiary asset that early action could have preserved.

Dashboard camera footage from your own vehicle, from other vehicles on the road, or from commercial vehicles such as delivery trucks and buses with rear-facing cameras can sometimes capture the moments before the collision in a way that documents the other driver’s behavior. This is evidence that disappears quickly as vehicles are repaired, replaced, or as cameras overwrite their storage. Identifying vehicles that were in proximity to the collision and might have had cameras, and reaching them before their footage cycles, is investigative work that an attorney’s office should be doing within days of being retained.

The question of punitive damages is one that almost always comes up in distracted driving cases and that is worth addressing specifically rather than leaving as a vague possibility. Punitive damages are damages awarded not to compensate the plaintiff but to punish particularly egregious conduct and deter similar conduct by others. In Missouri, punitive damages are available under Section 510.261 of the Revised Statutes when the defendant’s conduct shows complete indifference to or conscious disregard for the safety of others. Texting while driving is not ordinary negligence. It is a choice made by a driver who knew the risk, knew the distraction, and chose to engage with their device anyway. Courts have found in a number of jurisdictions that texting while driving, established through phone records, meets the standard for punitive damages consideration. Missouri courts have addressed the conscious disregard standard in the distracted driving context, and while a punitive damages award is never guaranteed and requires specific factual development, the availability of the theory in cases with clear evidence of active phone use at the moment of impact is real and meaningfully affects the insurer’s risk assessment. An insurer evaluating a case where subpoenaed carrier records confirm texting at the moment of impact is evaluating a case with punitive exposure, and that exposure affects the settlement conversation in ways that a pure compensatory claim would not.

The insurance company representing the texting driver will almost certainly request the other driver’s phone records as part of its own investigation, and what the insurer learns from those records informs their initial reserve and their settlement posture. An insurer whose own investigation confirms that the records support a distracted driving finding has internal knowledge of their exposure that affects how they respond to your demand, even if they do not share that knowledge with you. An attorney who independently subpoenas the same records and incorporates them into the damages demand is giving the insurer a clear signal that the evidence base is on the table and that the conversation about full value must account for it. The asymmetry between a represented plaintiff who has subpoenaed the phone records and an unrepresented one who is relying on the other driver’s admission creates a settlement gap that maps almost perfectly onto the difference between what a distracted driving case is worth and what an insurer will pay when they believe the plaintiff does not have the evidence.

If you are reading this because you were recently hit by a driver who appeared to be on their phone, or who admitted at the scene that they had been texting, the action that matters most right now is getting an attorney involved quickly enough for preservation to happen before the carrier records cycle. Everything else in this case can be developed over time. The phone records cannot be recovered once they are gone. The investigation that happens in the first thirty days of a distracted driving case determines the evidentiary foundation that everything else gets built on. Courts can compel production of what exists. They cannot compel the reconstitution of what no longer does.

This article is intended for general informational purposes only and does not constitute legal advice. Missouri statutes governing distracted driving, negligence per se, punitive damages, and the procedural rules governing discovery of electronic evidence are subject to interpretation and change through court decisions and legislative action. Cell phone carrier record retention policies vary by carrier and are subject to change. Nothing in this article should be relied upon as legal advice specific to your situation. If you were injured in a collision involving a driver who may have been texting or using their phone, consult a licensed personal injury attorney in your state as soon as possible to preserve time-sensitive electronic evidence.