By Danielle Luessenhop, Paralegal, Serving Southern Wisconsin
October brings unpredictable Wisconsin weather, early sunsets, and busier roads as families settle into fall routines. It is also a time when safety advocates and attorneys across the country renew their focus on one of the most preventable and persistent causes of serious crashes on Wisconsin roads: distracted driving.
At Nowlan Injury Law, we regularly see the consequences of these crashes. What many injured people don’t realize is that being hurt by a distracted driver is not just a tragedy; it often changes the legal landscape of your injury claim in ways that can work significantly in your favor.
Here is what Wisconsin law says about distracted driving, how we prove it happened, and why it matters to your case.
Distracted Driving Under Wisconsin Law
The broadest provision, § 346.89(1), prohibits any driver from engaging in any activity, other than driving, that “interferes or reasonably appears to interfere with the person’s ability to drive the vehicle safely.” This language is intentionally wide. Courts have interpreted it broadly to cover behind-the-wheel behaviors beyond phone use alone.
More specifically, § 346.89(3)(a) directly prohibits texting and emailing while driving. No person may compose or send an electronic text message or email while operating a motor vehicle in Wisconsin. Violations carry fines ranging from $20 to $400 and four demerit points on a driver’s license record. If a crash results in injury or death, criminal charges become a very real possibility.
The law is clear: texting while driving is illegal in Wisconsin. In a personal injury case, however, the legal consequences extend far beyond a traffic citation.
The Scope of the Problem
The National Highway Traffic Safety Administration reported that 3,208 people were killed and an estimated 315,167 were injured in distraction-affected crashes in 2024 alone, roughly 861 people injured every single day. Sending or reading a text takes a driver’s eyes off the road for an average of five seconds, the equivalent of driving the full length of a football field at 55 mph with eyes completely closed.
These are not abstract statistics. They represent real families in Wisconsin and across the country dealing with permanent injuries, financial hardship, and losses that no settlement can fully restore.
How We Prove a Driver Was on Their Phone
This is the part most people don’t see coming and the part that matters most in building your case. Proving the other driver was on their phone isn’t guesswork. It is a deliberate, evidence-driven process.
Phone records, obtained through a formal subpoena after you file a lawsuit, can reveal call logs with timestamps, text message send and receive times, data usage activity (including social media and app access), and GPS location data tied to the phone’s carrier tower connections. When a text message timestamp matches the exact time of your crash, it becomes powerful evidence that any insurance company or defense attorney will struggle to explain away.
Modern smartphones also store internal usage logs that can show screen unlock events, app activity, and interaction with navigation or music applications. When the physical device is accessible, forensic analysis can uncover activity that carrier records alone may not capture.
Beyond phone records, our attorneys look for:
- Dashcam footage from vehicles or nearby traffic cameras showing the driver’s position and behavior in the moments before impact
- Witness statements from bystanders who observed the driver with a phone before the crash
- Physical evidence, including the absence of skid marks, which can indicate the driver did not attempt to brake
- The driver’s own post-accident statements documented in the police report, which sometimes contradict what the evidence later reveals
One critical warning: phone carriers do not keep records indefinitely. Some providers purge text message metadata in as little as 90 days. This means the window to preserve that evidence is narrow, and delay can permanently close the door on it. When we take on a distracted driving case, one of our first moves is to send a preservation demand, a formal notice to the at-fault driver and their insurer that we anticipate litigation and that they must preserve all digital records. If the other side destroys records after receiving that notice, the legal consequences can be severe.
Why Distracted Driving Crashes Often Result in Stronger Claims
Not all negligence is treated equally by insurance companies or by juries.
When a driver violates a specific statute like § 346.89 and causes an accident, that violation can constitute negligence per se. In plain terms: breaking a safety law that was designed to protect people like you is itself evidence of negligence. You do not have to prove the driver was not paying attention in an abstract sense. You can point directly to a broken law.
This distinction matters in several concrete ways.
Insurance adjusters take distracted driving claims more seriously. When there is documented evidence of phone use, especially a statutory violation, the insurer knows its client faces a real liability problem. That changes the negotiation from the outset.
Juries respond to distraction evidence. In cases that go to trial, jurors understand the danger of distracted driving because most of them have nearly been hit by one; when the evidence shows a crash was entirely avoidable, the driver simply needed to put the phone down, that tends to resonate.
The conduct can support claims for greater damages. Depending on the circumstances, reckless or particularly egregious distracted driving may support arguments for punitive or enhanced damages, beyond the standard economic and non-economic losses associated with any injury claim.
Wisconsin operates under a comparative negligence system. Your recovery may be reduced if you are found partially at fault, but as long as you are not more than 50 percent responsible for the crash, you can still recover damages. This makes clear, documented proof of the other driver’s distraction especially important.
What to Do If A Distracted Driver Hits You
If you believe the driver who caused your crash was on their phone, here is what matters most in the immediate aftermath:
- Call 911and make certain a police report is filed that documents the time of the crash
- Write down or photographeverything you remember about the other driver’s behavior leading up to the impact
- Collect witness contact information:if anyone nearby observed what happened
- Seek medical attention promptly, even if your injuries feel minor at the scene
- Do not wait to consult an attorney|
Time is the enemy of distracted driving cases. Evidence that could make your case- cell phone records, app data, carrier logs- has a shelf life. The sooner we get involved, the better positioned we are to preserve what exists and build the strongest possible claim on your behalf.
Injured in a Distracted Driving Crash in Wisconsin?
If you or someone you love was hurt because another driver looked at their phone instead of the road, Nowlan Injury Law is here to help. We represent injury victims across Wisconsin, and we know how to build the evidence-driven cases distracted-driving claims require. Consultations are free, and you pay nothing unless we recover for you.
