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 Court, 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
safety 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 accepted 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? =================================================
Vicki Siedow
Siedow & Associates Investigations
& Custom Legal Support Services
2629 Foothill Blvd. #262
La Crescenta (Los Angeles area), CA 91214
818-242-0130
800-448-6431
818-688-3295 fax
Siedow@L...
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