Articles & Clips from our Newsletter:

Legal Acceptance of EDR Data

By Steve Belyus

Shortly after the turn of the century, Electronic Data Retrieval (EDR) began to find its way into the courts.   As with other new technologies, court recognition and legislative direction has been catching up.  Courts in 19 states, including Ohio, have recognized EDR evidence to date.  EDR data may not be altered or erased; but only read by the tools available to law enforcement and other investigators.  Although investigators prefer to view this data no differently than collecting skid mark data and other evidence from crashes, state legislatures have begun to regulate its collection.  By early 2008, 12 states (Ohio not one of them), had statutes on the books to regulate EDR data.  EDR’s capable of being read by commercially available equipment are found on Ford, Chrysler, and GM cars and light trucks.  The National Highway Safety Administration (NHTSA) has ruled that, with the release of 2011 model year vehicles, all manufacturers must release the hardware and software (by commercial contract) required to access EDR information if the vehicle is equipped with recording capability.  Since availability of this information will be mandated, a rush to legislate may be expected to protect information that some groups feel is private.  Current state regulation of EDR data varies in voracity with Arkansas being most notably restrictive. In that state, the registered vehicle owner’s written consent is required and, if more than one person owns the vehicle, then all owners must consent to the data retrieval in writing. 

The owner of the motor vehicle at the time the data is created retains exclusive ownership rights to the data and ownership of EDR data does not pass to an insurer because of succession of ownership (salvage).  In addition, the owners written consent is required for an insurer to use the data for any reason.  Consent to the retrieval or use of the data cannot be conditioned upon settlement of a claim.  Advanced written permission to retrieve or use the data as a condition of issuance of an insurance policy is prohibited.  The Arkansas statute prevents an insurer from gaining title to a vehicle that is a total loss due to a crash, assuming ownership of the EDR data record and then using it for litigation or claims processing without obtaining permission from the person who owned the vehicle at the time of the crash.  It declares EDR data “private” and precludes any clause in a policy requiring release of the data by an insured.  Similar to the Arkansas statute, Virginia, Oregon, New Hampshire, and North Dakota statutes consider EDR data as property, assigning ownership rights.  While Connecticut requires an owners consent, it also prohibits the alteration/deletion of data or the destruction of an EDR after a crash until a reasonable amount of time has passed to enable police to obtain a warrant.  Even in a state with no regulation, generic “private computer information” statutes may be employed to defeat EDR data obtained without consent or court authorization.  During any period of time that access to an EDR is pending, it is important to require that the electrical system in the vehicle be disabled to prevent any further  recording on the device.  This will prevent disruption of data or “ghost” readings (potentially caused during banging around in a storage lot) that may serve to confuse a valid record.  It cannot be overemphasized that a thorough and timely crash reconstruction will likely be the key to establish the foundation for requesting court authorized access to EDR data.  Commercial vehicles (CMV’s) that use large, diesel engines employ computerized control systems called Electronic Control Modules (ECM’s).  These devices vary widely (according to engine manufacturer) in the information that may be available to download.  Certain parameters and data recorder settings may be controlled by the owner or his mechanic.  However, important information available from ECM’s may cover a particular incident or may span a period of 30 days. Some data is preserved for the life of the vehicle.

Since information available from a CMV will span multiple incidents and jurisdictions, the timely establishment of a valid basis to request electronic data from court is imperative.  An added factor is this; in most car-truck crashes, the CMV is less likely to receive disabling damage and will usually be free to continue its journey when the police investigation at the scene is completed.  In addition to having been accepted by courts in 19 states, EDR evidence has been accepted twice in federal court.  Five appellate decisions have been rendered (one in Ohio) upholding EDR evidence.  Although most cases have been criminal, the 2 federal cases and 10 of the state cases were civil matters.  While Ohio has yet to address legislation, the science is here and full implementation is on the horizon.  Now is the time for those who represent special interest in the EDR capability to plan for influencing future legislation in a positive fashion.

 

“Let Us Protect Your Interests”


The Black Box

By Steve Belyus

 

It was 2004, and I had just completed a course on the  “CDR Download” tool built by Vectronics.  I couldn’t wait to try the tool out on a vehicle from a crash that I had recently reconstructed.   The Trailblazer had struck a Cavalier “T-bone” style at an intersection.  A linear momentum calculation placed her speed in the high 60’s when she started braking.  The technology was so new that the Ohio State Highway Patrol had no policy to guide the use of this tool. The data, downloaded from the airbag module, not only supported my speed determination, but gave a glimpse of driver actions 5 seconds before the crash.  At a glance, one could see that the driver was belted, she was off the gas for 5 seconds pre-impact, she applied her brakes within the last second prior to impact, and that her vehicle slowed by 20MPH in the first 150 milliseconds after impact. 

Airbag technology has evolved since the mechanical sensors prior to the early 90’s.  The airbag module used today is a marvelous combination of microprocessor, accelerometer, and event data recorder that monitors a variety of data and employs an algorithm to “predict” whether a sudden deceleration is going to be severe enough to deploy airbag (s). 

Bottom line:  As with the preservation of most evidence, digital data that is collected sooner, rather than later, will have fewer admissibility hurdles.  Police, attorneys, and insurance investigators will benefit most from this technology.  Warrantless access to data “owned” by the other driver is unlikely.  It is worth repeating that the data cannot stand alone as there are too many potential variables.  A data download may only be useful to support results from a reconstruction, but it never hurts to have two independent sources that point to the same conclusion in a crash investigation.


Who do you call when a good day goes bad?

You have just poured your first cup of coffee when your dispatcher calls to tell you that one of your trucks has just been involved in a fatal crash.  The next number you dial may very well determine whether or not your company survives. 

The projected increases in vehicle population, freight demand, traffic density, and congestion will continue to increase the exposure of each truck to crashes. 

The Federal Motor Carrier Safety Administration (FMCSA) provides the following statistics:

"Let Us Protect Your Interests"