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Smart Cars

By: dmc-admin//September 8, 2008//

Smart Cars

By: dmc-admin//September 8, 2008//

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ImageA 2007 Ford Mustang is motoring through an intersection, when suddenly its driver slams on the brakes in an attempt to avoid a turning Toyota Corolla.

The cars collide and the motorists debate who is at fault. Little do they know that odds are good one of their cars will betray their story, thanks to a “little black box,” known as an event data recorder (EDR).

Though the technology has been around for more than a decade, a recent federal rule, mandating that automakers who insert EDRs into their cars notify the consumer, will aid attorneys in their ability to quickly assess liability in criminal and civil cases.

Personal injury attorney Victor C. Harding said that while many practitioners are still unfamiliar with the technology, he expects that EDR evidence will eventually be as credible as DNA.

“It’s going to be a lot like that,” said Harding, of Warshafsky, Rotter, Tarnoff & Bloch S.C., in Milwaukee. “Eventually, nobody is going to question it.”

But for now, there are plenty of questions regarding accessibility and preservation of data contained on EDRs. Those devices are typically activated whenever there is an occurrence such as an accident. They frequently record information collected several seconds before the event, including speed and whether the vehicle was accelerating or decelerating.

Gaining Access

Harding admits that consistent access is one of the current challenges he encounters with EDR data.

According to the Insurance Institute for Highway Safety, EDRs and the information stored within belong to vehicle owners. Owner consent or a court order is technically needed for police, insurers, investigators or automakers to gain access to the data.

Harding said accessibility will still be a gray area even after a new federal mandate is enforced on Sept. 1, 2012, and currently it is “hit or miss” if a car has a black box and if that information is made available.

“Some cars you can get access to the black box and download info, but you need specialized equipment,” said Harding. “And how much money do you want to expend to do that?”

The new rule issued by the U.S. Department of Transportation’s National High-way Traffic Safety Administration (NHTSA) requires that all EDRs operate with the same technology, but it does not mandate when it has to be made available and to whom. In addition, the rule does not require that all manufacturers install EDRs.

Harding notes that if it is a “million-dollar case,” it’s worth sending a subpoena to Ford, but for lesser cases, clients can’t afford to travel to Detroit.

Defense attorney and former prosecutor Paul E. Bucher said in his experience in obtaining information from EDRs, probable cause or a search warrant is sufficient, and usually beneficial.

Bucher said the information contained within a car’s on-board computer likely factored into an $875,000 jury verdict for a client last year.

“The box played a key role in our presentation, but it cuts both ways,” said Bucher, who noted that the black box information can incriminate potential clients on the spot.

“If a client comes in and says he wasn’t speeding, we could download the information and confront the client and say, we’re not going to proceed with this case,” said Bucher.

Informed Decision

The use of EDR technology to reconstruct an accident scene can provide far more accurate details than eyewitness accounts, said Harding.

“If a kid gets out of a car and says he was going 25 before impact, we can pull the black box that says he was going 37,” said Harding.

Bernard T. McCartan, legal counsel for American Family Insurance, said he has had limited exposure to EDRs, but expects the technology will provide a more vivid idea of what happened prior to an accident.

“My own take is whether it’s on the plaintiff’s side or the defendant’s side, the information can be useful in recreating what happened during the last few seconds prior to an impact,” said McCartan. “If we get a clearer picture more quickly, that will help in settlement discussion and both sides will have a better idea of where they stand.”

But McCartan does not expect EDRs will eliminate the need for more traditional accident scene investigation techniques.

In fact, crash scene investigator John R. Schatzman said EDR technology currently adds another layer to his job, and in some cases the technicians who download the information are unqualified.

“It’s kind of the hot investigative technique right now, so you’re getting various branches of technicians involved without proper training,” said Schatzman, who has been an investigator for 25 years. “There is definitely a protocol of people trained to download the data and those that interpret the data. They are not one in the same.”

Out in the Cold

Preservation of the data on EDRs can also be problematic, said Harding, who has worked cases where the information on a black box has been damaged.

While the information is not time sensitive and is designed to sustain the impact of a collision, Harding noted that EDRs can be corrupted by the elements or an individual.

“If a car is impounded and it’s not available for two weeks and steps aren’t taken to protect it, there is the potential for spoliation of evidence,” said Harding. “You see that more these days and there needs to be steps taken to preserve that information.”

Harding cited two recent cases in which data on the EDR was useless. In one, the windows were left down when the car was impounded in winter and in the other, someone spilled a soft drink which leaked into the EDR.

In some cases, the EDR itself could keep bad data, if it was not properly installed.

“It’s all dependent on the accuracy of algorithm and calibration in the unit itself,” said Schatzman. “It’s like maintaining a watch that keeps perfect time, but if it was incorrectly set in the first place, it will keep reading Sunday when it’s really Monday.”

While Harding said the average consumer cannot easily tamper with the contents of a black box, Bucher suggested that the owner should have the right to decide whether or not they want to enable the technology.

“There are some valid privacy issues raised and individuals should have ability to turn them off,” said Bucher. “Nobody should be forced to have the information used against them.”

Bucher and Harding expect that privacy questions, along with those pertaining to the use of EDR data, will be answered in court as the technology becomes more predominantly sought in criminal and civil investigations.

Attorney Anthony M. Karabon, who is vice president and general counsel for the Boucher Automotive Group, expects the safety benefits of EDRs will ultimately outweigh consumer concerns.

“They provide safety benefits to not just owners, but to others involved, so I personally don&rs
quo;t see how that this is going to become optional like a CD changer,” said Karabon.

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