"Scientific Traffic Accident Reconstruction Specialists"
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"Scientific Traffic Accident Reconstruction Specialists"
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FOR IMMEDIATE RELEASE Stars Consulting, LLC
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 |
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For More Information Contact: Stars Consulting LLC 29440 Chestnut Drive, Albany, OH 45710-9115 1199 Windcliff Ct., Grove City, OH 43123 Cell: 740-541-8482 / 740-974-4511 / 614-563-5032 FAX: 740-698-0306 Internet: webmaster@starsconsultingllc.com
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