Tuesday, April 29, 2014

Your Car Probably has a Black Box: What Story Does Yours Tell?

On March 18, 2014, Malaysian Airlines flight 370 disappeared en-route from Kuala Lumpier to Beijing sparking a massive search and ongoing mystery. Neither the plane nor any of its passengers has yet been found, though emergency personnel believe they may have located the flight’s data recorder at the bottom of the Indian Ocean. Flight data recorders collect a wealth of information about the condition and operation of airlines and retrieving this “black box” would tell researchers exactly what happened to the airplane and why it went down. While this data may prove critical to understanding what happened to Malaysian flight 370, many people may not realize that most cars in the United States have similar devices. In fact, pending federal legislation may require electronic data recorders in all cars by 2015. Expanding the use of EDRs in automotive applications offers a number of potential benefits such as improved auto and road safety through better accident data, however, the new law has renewed the concern of many consumers and privacy advocates over exactly how such data will be used.

What Is an EDR?

Electronic Data Recorders monitor certain signals from the vehicle and record that information shortly before and during an accident event. This information can later be retrieved and analyzed to help researchers better understand exactly what went wrong during a crash and how to prevent future accidents. With the implementation of mandatory OBD II engine and emission monitoring in the mid 1990s, many manufacturers took the opportunity to begin tracking and recording additional information for use in crash analysis. Today, the NHSTA estimates that more than 90% of all cars on the road are equipped with some form of EDR device; exactly what data the EDR records depends on the manufacturer. Under proposed federal law, 15 data points are required including vehicle speed, driver seat belt status, breaking force, and throttle position; however, most EDR devices likely are capable of collecting a much broader range of information. Of particular concern is the possibility of recording GPS data including specific driving patterns, speed, and precise location. As currently designed, most common EDR systems are integrated into the vehicle’s airbag system and record only a few seconds of data; either on a rolling basis (perhaps the last 30 seconds continuously) or as a result of certain specified trigger events (such as airbag deployment or sudden high G forces).

What Is the Data Used for?

Data collected by automotive EDR devices has a number of applications. Some are laudable such as helping to improve vehicle safety systems, roadway designs, or safety laws. Others are of more concern such as the ability of law enforcement to use the data in criminal prosecutions or of insurance carriers to use the data when setting policy rates. As of the writing of this article, only 13 states have laws specifically addressing exactly how automotive EDR data can be accessed and who owns that data. California’s law, enacted several years ago, states that EDR data belongs to the vehicle owner and can only be accessed with that owners consent, under a court order, or for safety statistical compilations where personal data is not also revealed. Proposed federal legislation would provide similar protection on the national level.

Privacy Concerns Abound

Unfortunately, this does not mean that your data is safe; or rather, that you are safe from your data. Many insurance companies are now including language in their standard policies requiring drivers to consent to data collection and while some states have moved to prevent this practice, the legal protections are patchwork at best. In many states, police authorities are equipped with devices capable of reading many types of black boxes on the scene of an accident. Even where neither your local police nor your insurance company can obtain the data at-will, a court can almost certainly subpoena that data for use in a either a civil or criminal trial.

In fact, this has already been done. While a California court ruled on appeal that law enforcement must have a warrant before taking EDR data for use in a criminal proceeding, such use is clearly an option in the state as it is in many others.

Practical Application

It is not hard to imagine situations in which the use of EDR data becomes very troubling for many drivers; even those who generally have nothing to hide. Insurance companies may use data collected after an accident to shift the blame for the incident or even to reduce or deny coverage based on certain factors. If, for example, your EDR reveals that you were not wearing a seatbelt at the time of the crash, it might be argued that you are partly responsible for your injuries and therefore not eligible for a full settlement amount. Something very similar happened to a Michigan politician who was caught in a lie by data from retrieved from the government car he crashed which contradicted his official story of a recent high-profile crash.

As with most types of data, the numbers themselves don’t have any agenda, but, how those numbers are used, and by whom, leaves a lot of questions unanswered. Furthermore, ensuring the validity and accuracy of the EDR data itself has never been adequately addressed. Exactly what the future holds for automotive EDR data will ultimately be decided by legislators, consumers, and the courts, but everyone should keep an eye on this rapidly developing area of law as the implications for establishing liability in an auto accident are potentially enormous.

Tuesday, April 15, 2014

Striking a Balance in Rape Prosecutions

Rape and childhood sexual abuse are sensitive subjects no matter the setting. In the criminal justice context where victims and society sometimes seem inherently at odds these conversations can become even more difficult. Set against a backdrop of rape culture and feminism which so often feature in this discourse, it can be challenging to present current issues in a balanced yet sensitive manner. No one worth listening to seriously condones sexual assault of any kind; but to victims, who often face unfair and damaging attacks on their credibility, character, and experiences, any discussion of judicial restraint can seem like a direct insult to their undeniably traumatic circumstances. Yet without a balanced system of justice no one, not even rape victims, is better off in the long term. In order to promote the integrity of the system that protects each of us from the misdeeds of our fellow citizens we must at times engage in sensitive discussions regardless of the risks. Senate Bills 926 and 924, which seek to greatly increase the statute of limitations for both rape prosecutions and civil lawsuits alleging damages from rape, represent just such an occasion. In an effort to present this discussion in as neutral a light as possible, we’ll cover both sides of the debate in separate sections and leave it up to you as readers to form your own opinions of the better outcome. Comments will be disabled on this article to prevent abuse.

Statutes of Limitation

Under the law, many, possibly most, criminal charges must be filed within certain closely defined windows of opportunity. An attempt to file charges too late will usually result in dismissal of the case and legal exoneration for the defendant. There are a number of very good reasons to enforce these kinds of limitations on prosecution. Of primary concern is the quality and availability of evidence, both for and against the defendant. Over time, people pass away, witness memory fades, DNA samples degrade, locations are altered, law enforcement officers are promoted or even retire, and both perpetrators and their victims mature and – to the extent possible – move on with their lives. In civil cases, insurance policies expire or are renegotiated based on past performance, businesses books are settled, staff turns over, new investments made and old risks calculated. These lists could go on ad infinitum, but what should be clear is that trying cases becomes increasingly difficult as the facts supporting the case age.

On a more sinister note, allegiances and personal perspectives can also change over time; often dramatically. Lovers fall out, children grow up, employees are fired, and business deals turn sour. While reliable statistics are hard to compile, it is likely that the majority of sexual assault allegations have merit. Whether, in a particular case, the correct perpetrator has been identified, the extent of the offense properly defined, or the factual circumstances accurately recorded; however, is an open question. Unfortunately, these details can, and sometimes are, affected by the personal relationships at stake in a case; individual perspectives can change over time.

To help guard against degradation of the evidence or the possibility of unfairly changed perspectives, statutes of limitation cap the time in which charges must be brought. These limitations serve to provide some measure of finality to society and to protect against abuse of the legal system.

Time to Recover

On the other side of the equation, victims of sexual assault, particularly children, undeniably need time to heal. Medical research suggests that in many cases individuals have difficulty remember the specifics of a traumatic incident, or even that an incident occurred at all. Psychologists tell us that this memory block is a defense mechanism employed by our brains to help victims move on and heal after an attack. To further complicate matters, many victims are stuck in a nightmare of continuing abuse and totally lack any power to seek justice against their abusers. Young children may suffer at the hands of an abuser for years before ever realizing that they can tell someone about the attacks. Such victims may need many years to recover enough to report the abuse to the legal system and sometimes much longer still to fully appreciate the extent of the physical and emotional damage done to them by the attack(s).

A legal system insensitive to this reality will be unfairly stacked against the very people the system is designed to protect. For this reason, unduly short statutes of limitation cut off the possibility of persecution before victims have had a time to get their bearings after an attack or attacks and give perpetrators of sexualized violence a “get out of jail free” pass by virtue of the very abuse they have committed. Striking the right balance isn’t easy.

Senate Bills 926 and 924

Enter the California Senate. Two bills currently under consideration that would dramatically alter the current system of limitations on prosecution and civil lawsuits against perpetrators of sexual violence. Current law gives victims of childhood sexual abuse until their 28th birthday to report the abuse to authorities and until their 26th birthday or three years after the damage from the abuse is recognized medically to file a civil lawsuit. Introduced by Senator Jim Beall, SB 926 and 924 would raise these caps to 40 years old and five years from the discovery of damage from the abuse respectively. This isn’t the first time the Senator has tried for this change. In the last legislative session a similar package of bills passed both houses of the legislature with wide margins enjoying support from both political parties; it was ultimately vetoed by Governor Brown who took the time to write an uncharacteristically long signing statement describing his reasons for the veto.

“there comes a time when an individual or organization should be secure in the reasonable expectation that past acts are indeed in the past and not subject to further lawsuits,” given that evidence can be lost, memories can fade and witnesses can become unavailable over time. “This extraordinary extension of the statute of limitations, which legislators chose not to apply to public institutions, is simply too open-ended and unfair.”

There are some distinct differences between the vetoed bill and the current effort including the extent to which the changes would apply to the past and exactly which entities could face the revised guidelines (the new bills are not retroactive and apply equally to both public and private entities) and so it remains unclear exactly how the bills will fare in this session or whether, if passed, they too will face a veto action.

Tuesday, April 1, 2014

Deferring A Drug Conviction

Drug crimes provide an interesting study in social justice. While few people will seriously argue that drug addiction is good for society, that the commercial side of the drug business is acceptable as it currently operates, or that the violence often surrounding the importation of illegal drugs is sustainable, there is strong debate about how best to address these issues; particularly from a criminal justice perspective. For many years there has been a movement towards approaching the drug problem from a health and welfare perspective rather than a purely retributive criminal angle. Recently, this movement has gained substantive momentum. Today, twenty states plus the District of Columbia have laws legalizing at least some forms of marijuana use and two states, Washington and Colorado, have legalized the drug for recreational use. Many more states have developed programs to help drug offenders and abusers rather than simply punishing them for their addictions; California is among this latter group.

Penal Code 1000

Faced with a severely overcrowded prison system and budget difficulties, California has developed a program under which drug offenders can obtain help and treatment rather than a criminal record and a jail sentence. Authorized by Penal Code 1000, California courts have the authority to delay a criminal drug conviction pending successful completion of an approved drug treatment program; successful graduates of such a program can then have their charges dismissed. This is known as a Deferred Entry of Judgment and typically requires a defendant to plead guilty to the charges prior to entering the program. Failure to complete the program will result in those charges being finalized in a conviction.

Who is Eligible?

To participate in a DEJ program, defendants must satisfy two broad requirements. First, the crime with which the defendant has been charged must match one of the several crimes specifically listed in Penal Code 1000. Generally this means that the drug crime in question must be related to personal use or possession, as opposed to possession for sale, and there must be no allegations of violence associated with the drug charge. Second, a defendant must be personally eligible, meaning that they must not have certain other drug related convictions on record, must not have participated in a DEJ program within the last five years, must be in compliance with any parole or probation requirements, and must not have certain other felony convictions on record.


During the program the court will determine which course of treatment is best for the defendant. This process will take into consideration factors such as the defendant’s age, education, employment situation, community and family situation, and drug history. Failing to fully participate in the program can result in the court entering judgment against the defendant which will result in a sentencing hearing to determine the appropriate punishment for the crimes charged.

After a defendant successfully completes a DEJ program, the court will set aside the charges. This means that successful program graduates can truthfully state that they have never been convicted of the crime in question and that the associated arrest record cannot be used against the individual with regard to employment or professional licensure or certification.

Other Alternatives

Penal Code 1000 is only one of several different alternatives for drug offenders. While it is arguably the best and broadest, not everyone is eligible for a DEJ program and, as such, some defendant’s must rely on other options. These options include the Proposition 36 drug treatment program or entry into California’s Drug Court; both of which differ in several ways from the DEJ program discussed above. Specifically, Proposition 36 programs do not conclude with an automatic dismissal of charges while in drug court there is no requirement that a defendant plead guilty before participating.
Call us for help

Because there are multiple options that apply to different types of crimes and circumstances, it’s best to seek professional legal help before attempting to negotiate any type of drug crimes alternative treatment option. If you are facing a drug related crime, don’t wait to contact us as any delay may jeopardize your legal rights.