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The Rogak Report: 09 August 2004 ** Auto Accidents: Evidence **

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  • Lawrence Rogak
    COPS MAY DOWNLOAD DATA FROM AUTO S COMPUTER AFTER FATAL ACCIDENT, WITHOUT A WARRANT, AND USE IT AS EVIDENCE IN COURT People v. Christmann, 776 NYS2d 437
    Message 1 of 1 , Aug 9 10:07 AM
      COPS MAY DOWNLOAD DATA FROM AUTO'S COMPUTER AFTER FATAL ACCIDENT,
      WITHOUT A WARRANT, AND USE IT AS EVIDENCE IN COURT

      People v. Christmann, 776 NYS2d 437 (Justice ourt, Village of Newark,
      Wayne County) (CHAMBERS, j.)

      After a fatal collision with a pedestrian, the driver was charged
      with speeding (V&T Law section 1180(d)) and Failure to Exercise Due
      Care (V&T Law section 1146). At trial, the question arose as to the
      admissibility of evidence which the investigating officer downloaded
      at the scene of the accident from the on-board computer of the
      driver's car.

      Upon arrival at the scene of the accident, the pedestrian was already
      dead. In addition to traditional methods of scene investigation
      (measurement of skid marks, photographs, etc), the investigating
      State Trooper used his laptop computer to download information from
      the Sensing Diagnostic Module (SDM) in the defendant's car. He
      conducted this procedure without seeking or obtaining permission from
      the driver. "To do so, Trooper Frost asserted control over the
      vehicle, directing it not be moved until after his investigation was
      completed." After the downloading and testing was complete, the
      vehicle was returned to the defendant. The trooper thus "impounded
      the vehicle even if for a short period of time."

      In addition to downloading the computer data, the trooper operated
      the vehicle to see if the brakes worked properly, and used a "Total
      Station" measuring device to chart the relative position of the
      landmarks, automobile, debris and personal property. He also
      operated the car with an accelerometer attached in order to measure
      the braking capability of the car.

      The Sensing Diagnostic Module has been installed in General Motors
      cars since 1990. The system detects acceleration or decelaration and
      makes decisions every 10 milliseconds as to whether or not to deploy
      the airbags. The system also stores vehicle data such as vehicle
      speed, engine RPM, throttle percentage and brake data, change in
      velocity ("Delta V") and seat belt usage, all in one-second
      increments for a period of 5 seconds. After a deployment or near-
      deployment of air bags, the data is stored for a further period of
      time.

      Vetronix Corporation has produced a crash data retrieval system (CDR)
      which allows for the downloading of the above information into a
      laptop computer, which will then generate reports for the use in
      accident reconstruction. It is this system which the State Trooper
      used to supplement his investigation of this accident. Physically,
      this was accomplished by connecting a cable to a plug located under
      the dashboard of the defendant's vehicle.

      The connection to the computer is one-way: the data in the SDM cannot
      be corrupted or modified by connection to the police officer's
      laptop. Further, the data in the SDM will be erased after the car
      ignition is turned on 250 times or if another deployment or near-
      deployment event occurs. The events that could trigger this loss of
      information include bumping the vehicle into a curb, hitting a
      pothole, or slamming on the brakes. Such loss of data could only
      occur with the ignition on.

      At trial, the State Trooper testified that he reconstructed the
      vehicle's speed in three different ways. From the vehicle's data, he
      determined that during the last 5 seconds before impact, the vehicle
      speed was 37 to 38 mph (the speed limit was 30). From measuring the
      impact where the pedestrian's head hit the windshield, he determined
      the speed of the vehicle to be 30 - 45 mph. Finally, using the data
      from the accelerometer together with the length of the skid marks, he
      calculated the vehicle speed at impact to be 38 mph.

      The Court addressed the evidentiary issues.

      First, section 603 of the V&T law commands any police officer
      responding to an accident scene where there are injuries to
      immediately investigate the facts and report them to the DMV. The
      Court of Appeals held in People v. Quackenbush, 88 NY2d 534, that
      police have the authority to impound a vehicle in order to comply
      with the reporting requirements of the statute. "Because a vehicle's
      safet equipment [is] subject to extensive governmental regulations,
      including mandatory annual inspection... a safety inspection after a
      fatal accident [does] not offend the constitutional prohibition
      against unreasonable searches and seizures."

      A vehicle owner has a "diminished expectation of privacy in the
      mechanical areas of a vehicle" and "that expectation must yield to
      the overwhelming state interest in investigating fatal accidents."
      Because the testing done on the SDM records vehicle performance data,
      and because it is necessary to perform such testing before the
      computer erases the data, no warrant is necessary and the defendant's
      search-and-seizure rights are not violated.

      Furthermore, the data from the SDM is admissible because it
      is "generally acceped as reliable and accurate by the automobile
      industry and the National Highway And Traffic Safety Administration."

      As a result, defendant was convicted of speeding. However, he was
      acquitted of the failure to exercise due care charge because
      according to an independent witness, the pedestrian stepped suddenly
      into the path of the defendant's car.

      Comment: While this is a criminal case, the implications of this
      ruling for civil cases are obvious -- and well worth noting. In how
      many auto accident cases have the attorneys and/or claims examiners
      called for the SDM data?
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