May 2009, Page 12

Retrieving Black Box Evidence From Vehicles: Uses and Abuses of Vehicle Data Recorder Evidence in Criminal Trials
By Dorothy J. Glancy

Over 40 million cars, including virtually every new car sold in the United States,1 have hidden recording devices. Most vehicle owners have no way of knowing about these devices, which are actually small special-purpose computers called event data recorders (EDRs). An integral part of a vehicle’s air bag passive restraint protection, the event data recorder “wakes up” the vehicle’s passive restraint systems and triggers air bag activation. As the event data recorder’s name implies, the device also records the last few seconds before a crash or near-crash, primarily for the purposes of research regarding the safety of vehicles and roadways. However, gradually the EDR’s role has expanded to include many additional uses, including providing evidence of driver behavior and vehicle speed in criminal trials.

Reported decisions illustrate the tendency of courts to admit EDR data as scientific or technical evidence in both civil and criminal cases. What criminal defense attorneys need to know about EDRs, and how they can effectively respond to EDR evidence, is the focus of this article. Although the official reports do not show the introduction of EDR data as exculpatory evidence, anecdotal reports indicate that EDR evidence can also be used to exonerate criminal defendants.

What Is an Event Data Recorder?
Event data recorders, built into almost every vehicle sold in the United States over the past decade, are an example of good news-bad news technology. EDR devices record data supplied by sensing diagnostic modules (SDMs)2 that are part of the air bag protection systems in almost every 21st century vehicle.3 Terminology regarding EDRs is not completely consistent. However, recent regulations from the National Highway Traffic Safety Administration have sought to standardize the terminology, data elements, and operations of EDRs at least by the year 2013.4 Members of the news media often refer to EDRs as crash data recorders, or CDRs, even though CDR is technically the acronym for a device known as a Crash Data Retrieval System that is used to download EDR data.5

EDRs borrow their “black box” nickname from flight data recorders in aircraft. But EDRs are substantially different from flight data recorders that continuously record both cockpit sound and aircraft status readings. In contrast, vehicle “black boxes” record only episodically, when a vehicle senses a potential collision. Moreover, EDRs do not record any sounds, conversations, or video. As is true with regard to many technical developments, EDRs gradually succumbed to mission creep. First designed to provide vehicle manufacturers proprietary information about vehicle performance, EDRs and the data they collect found their way into court when this information proved helpful to vehicle manufacturers in products liability litigation. Naturally, insurance carriers were eager to use the data in automobile accident litigation.

The safety-related data EDRs contained became a major concern of government agencies, particularly the National Highway Traffic Safety Administration (NHTSA) in the U.S. Department of Transportation. By 2013, NHTSA regulations will require that EDR data be retrievable by widely available retrieval tools and devices, and that vehicle manufacturers license proprietary intellectual property to make that possible. These regulations also endorse use of EDR data for summoning emergency medical assistance and the now-available automatic crash notification subscription programs, such as those associated with OnStar by General Motors. In short, EDRs and their data have shifted from triggering air bag deployment to more generally recording information about vehicle and driver behavior in crash and near-crash situations.

EDRs take the form of small metal boxes (a little thicker than a deck of playing cards and roughly four inches by four inches square) that are tucked away inside the vehicle where they remain invisible to the driver. Typically, they are embedded under the front seat or the center console or behind the dash board. The information they contain can be accessed through the diagnostic link connector (DLC), sometimes referred to as the On-Board Diagnostic port (OBD2), in the passenger compartment. The OBD2 is a required component of vehicles driven in the United States that were manufactured after 1996. EDR data can only be downloaded by using retrieval tools provided or authorized by vehicle manufacturers. Vetronix’s Crash Data Retrieval (CDR) system can download EDR data from many makes of vehicles.

EDRs capture data from a vehicle’s electronic diagnostic systems through a computer module that continuously analyzes sensor data throughout the vehicle. When certain data thresholds are detected by the SDM, that device prepares the air bags for deployment. At the same time, the EDR begins to record such data as the speed of the vehicle, whether seat belts are fastened, the use of braking systems, and the like. In other words, the intelligence behind air bag protection also records data about how the vehicle, its air bags, and its driver, perform. This linkage between benevolent protective systems and collection of evidence that may be used in a criminal trial seems paradoxical. Not only is information collected about vehicle and driver behavior when a vehicle actually crashes, the EDR also covertly records the same data — potential criminal evidence — when there is a near-crash event such as running up on a curb or hitting a pothole, when no air bag inflates.

What Information Is Recorded by Vehicle Black Boxes?
In vehicles of varying vintages, EDRs may contain many different types of data. In other words all EDR data is not the same, but rather a range of possible information that depends on the year, make, and model of the vehicle. Beginning around 1974, General Motors began including event data recorders made by Delphi in a few GM vehicles equipped with air bags. Since the beginning of this century, nearly all cars sold in the United States by General Motors, Ford, Isuzu, Mazda, Mitsubishi, Subaru, and Suzuki have Vetronix EDRs built into them. Chrysler was the latest vehicle manufacturer to adopt Vetronix EDRs in 2007. Now a subsidiary of Bosch Group, Vetronix not only makes most of the vehicle black boxes used in the United States, it also manufactures the commonly used CDR tool for retrieving vehicle black box data.6 Other manufacturers install proprietary diagnostic modules that trigger air bags and usually also have recording devices with functions similar to those of EDRs.

EDRs are not required as standard equipment under federal law. In a 2008 rulemaking, the NHTSA stated its unwillingness to require such devices because the agency believes that the devices are sufficiently penetrating the United States market as part of air bag systems.7 What NHTSA regulations do require is that by 2013 EDRs built into vehicles sold in the United States will have standardized minimum data elements and functionality.8 Required data will include: the speed of the vehicle at five-second intervals, accelerator pedal position (percent of full engine throttle), various measures of Delta-V (changes in forward crash speed and timing of maximum speed change), brake status (on/off), the number of ignition cycles (engine start-ups before and after EDR data is downloaded), seat belt status one second before the crash, a safety systems warning light, timing of air bag deployment, the number of events (pulses) involved in a crash, and finally, whether the EDR recording is complete (because in serious crashes EDR recordings are often incomplete). Vehicles with advanced safety features such as stability control or side air bags will be required to provide additional data elements from these systems. Moreover, the regulation requires that vehicle manufactures disclose the EDR system in owners’ manuals and make EDR data available for download from the cars they manufacture through a reasonably priced download tool. Complete listings of all standardized data sets associated with EDRs to take effect in 2012 and 2013 are provided in the final rule adopted by NTHSA in 20069 and published in revised form on January 14, 2008.10

At present, most vehicle black box devices (EDRs) record two types of vehicle data: crash data (deployment data) and pre-crash data (near-deployment data). Crash data is recorded during the last five to 10 seconds before air bags deploy and the vehicle crashes. In the more advanced data systems that will be required by 2013, all EDRs must be able to record more than one impact as part of the crash data that is permanently encoded in the EDR’s Electrically Erasable Programmable Read-Only Memory (EEPROM, non-volatile memory used to store small amounts of data that must be saved when power is removed). This data cannot be overwritten. After air bags deploy, both the air bags and the EDR have to be replaced. When there is an actual crash, the driver and occupants of the vehicle are aware that the air bags have deployed. What they usually do not know, however, is that the EDR made an automatic recording of the last few seconds before the crash.

Almost no one, outside the vehicle manufacturer and regulation communities, is aware that pre-crash data is recorded. Pre-crash data includes the same information about the behavior of the vehicle and driver as that recorded when there is an actual crash. The only difference is that there is no air bag deployment because there is no crash event. This pre-crash data, including vehicle speed, engine RPM, throttle, braking status, and seat belt use is recorded whenever the vehicle’s sensory system (e.g., SDM) senses a potential crash situation. Potential crash situations include such events as the vehicle making a sudden bounce or stop, rapidly changing speed, or steering sharply in a different direction — in short, avoiding an obstacle in the roadway. Pre-crash data is stored and eventually overwritten after a period of time (a month or two) or numerous ignition cycles. Before the information is overwritten, it remains silently in the EDR, potentially available as evidence in court.

Obtaining Data From Black Boxes
Given the potential wealth of data about driving behavior collected by EDRs, even in vehicles that have never experienced an accident, it is not surprising that the act of getting the data out can raise important questions. Initially, only the vehicle manufacturers had access to EDR data. These days, data extraction normally requires a technician who has physical access to the vehicle and to the EDR through the OBD2 port noted above. If the vehicle is locked, access to EDR data is generally blocked. Sometimes an EDR is removed to access the data in it. Once air bags have deployed, the EDR data is frozen and the EDR has to be removed from the vehicle and replaced by a new one, along with new air bags. Once removed, a technician can put the EDR on a workbench and use a computer to download the data.

The EDR and its electronically stored data require considerable care, since both physical and electrical damage can erase or mangle EDR data. Generally, pre-crash data is more vulnerable to harm because this data can be overwritten. Crash data may be more robust, but crash forces can also cut off power to the EDR and stop the recorder. After crash or pre-crash data has been downloaded from the EDR, the next step is usually interpretation of the EDR data by an accident reconstructionist qualified to work with such data.

In some vehicles, crash data and various sensing and diagnostic data (information about the behavior of various car parts, such as brake linings or lubricant levels) are combined with GPS location information and transmitted by wireless communications to vehicle manufacturers or service providers through such subscription programs as OnStar and BMW Assist. Most providers of these services carefully guard the data they receive and require formal warrants for law enforcement access to it, even when the information is badly needed by law enforcement. In its recent rulemaking regarding EDRs, NHTSA stated that it looks forward to wider availability of such automatic crash notification.

How Vehicle Black Boxes Are Regulated
Vehicle black boxes are primarily regulated and studied by NHTSA, which has long been interested in increasing the use of both air bags and EDRs. Federal regulation of EDRs is contained in 49 C.F.R. Part 563, which will become effective in 2012 and 2013. These regulations will require voluntarily installed EDRs to collect specified data at specified levels of accuracy and report that data in standardized formats. Moreover, EDR data will have to be downloadable by a publicly available tool, even if that means mandatory licensing of vehicle manufacturers’ proprietary data. Such a widely available tool for accessing EDR data is likely to make EDR data even more vulnerable to various potential downloaders — from the simply curious, to the mischievous, to the malicious. Vehicle owners will be required to be notified about the EDR in the vehicle owner’s manual; specific owner’s manual language is required under the regulation.

The most recent changes to these regulations were published January 14, 2008, in 73 Federal Register 2168. These 2008 NHTSA amendments extend the effective date of the final EDR rule to 2013 and also respond to several petitions regarding suggested changes in the rule. One petition sought to make EDRs mandatory; but NHTSA replied that mandating EDRs is unnecessary given the already impressive market penetration of EDRs. Another petition sought to have NHTSA require a mechanical lockout so that vehicle owners could better prevent tampering and control access to EDR data, particularly pre-crash data that vehicle owners usually never know has been collected. The agency denied this request. Replying that it is unaware of tampering or erasure of EDR data, NHTSA said that it would be willing to revisit the issue if EDR tampering were to become a problem. In New York, however, state legislation has been recently introduced to prohibit tampering with EDRs.

Roughly a dozen states have enacted statutes that regulate EDRs, require that vehicle owners be informed about the presence of EDRs, and stipulate that the data contained in an EDR belongs to the owner of the vehicle. Various restrictions on access are provided in these statutes, particularly requiring the consent of the vehicle owner for manufacturer or insurance company access. Some of the statutes require a warrant for law enforcement access to EDR data, irrespective of who else may have access to an EDR or EDR data. Some of the legislation provides continuing ownership of EDR data, even after the title to the vehicle has been transferred. These EDR statutes, and additional legislation pending in other states, were part of the reason for NHTSA’s event data recorder regulations intended to pre-empt differences between state statutes governing EDRs and uniform national federal law requirements promulgated in NHTSA regulations.

Uses of Vehicle Black Box Data
Safety remains the primary reason for installing EDRs in vehicles. A recent study sponsored by the U.S. Department of Transportation (DOT) concluded that EDRs “can provide objective real-world crash information for vehicle safety research purposes.”11 The study did not address directly the use of EDR data as evidence in court proceedings. However, the study’s concluding remarks caution, “It is very important to understand the limitations of EDR data and care should always be exercised when interpreting any EDR-reported parameter.” The DOT report also says “a clear understanding of what (and when) the EDR is measuring needs to be gained before any analysis. Awareness of the EDR limitations is needed for correct interpretation and use of the data.”12 These warnings should be presented to courts considering admission or exclusion of EDR evidence in criminal cases.

EDR Data as Evidence In Criminal Trials
Although EDRs were not designed and built into vehicles to provide evidence for criminal prosecutions, EDR evidence is increasingly a factor in certain types of criminal trials. EDR data, particularly information regarding vehicle speed, is most likely to be introduced in prosecutions for serious felonies involving vehicles, such as reckless driving, driving under the influence of drugs or alcohol, leaving the scene of an accident, and various types and degrees of vehicular homicide. It is difficult to find very many reported criminal cases in which EDR data has been introduced or excluded. However, there are also a number of unreported decisions such as that of the Court of Criminal Appeals of Tennessee, which granted a motion to suppress EDR evidence that had been collected through a warrantless search of a defendant’s automobile.13

Although exclusion or inclusion of EDR evidence is not reflected in many reported court decisions, the few reported criminal court cases that do deal with EDR evidence seem to reflect the potential for challenges to EDR evidence at several stages of a criminal prosecution. At the pretrial stage, defense counsel should be entitled to all EDR data and reports held by the prosecution. In addition to EDR data taken from the defendant’s vehicle, EDR data that the prosecution may have collected from other vehicles involved at the crime scene could be potentially useful to defense counsel. For example, in State v. Franco,14 defense counsel requested EDR data taken from the vehicle the defendant allegedly drove and also EDR data from other vehicles at the crime scene for potential use in defending against charges that included vehicular homicide.

Defense counsel access to EDR data in the possession of prosecutors is particularly important if defense counsel are to have a fair opportunity to analyze and evaluate potential EDR evidence. EDR evidence can be challenged through motions to exclude or to limit the uses of EDR evidence. The types of potential pretrial motions brought will depend on the jurisdiction. Such motions can challenge the chain of custody of the EDR or EDR data that may have passed through the hands of many people before it reached the lawyers or the court. In some jurisdictions, EDR evidence may be suppressed based on warrantless seizures of a defendant’s EDR or the information recorded in it.15 Searches and seizures of EDR data appear normally to require a warrant and probable cause, although warrants are not mentioned in all cases and some state statutes make EDR data available by subpoena.

On the other hand, motions to suppress EDR data as hearsay are unlikely to succeed. EDR data is treated as simply the output of the algorithmic calculations made by the EDR, a small special-purpose computer.16 In most reported cases, EDR data has been readily admitted as a “business record.”17

In some instances EDR evidence can be challenged as unreliable. Mishandling the device or the electronic data can corrupt EDR evidence, for example through physical harm (dropping or hammering the EDR) or exposure to electrical fields. Crash data is sometimes fragmented, and pre-crash data can be overwritten. Inadequately qualified technicians who downloaded or interpreted the EDR evidence may also provide grounds for exclusion.

So far, there are no widely accepted protocols for handling EDRs and the data they contain. One accident reconstructionist, James O. Harris, has posted on the Internet an article titled “Protocols for the Recovery, Maintenance, and Presentation of Motor Vehicle Event Data Recorder Evidence (12/05).”18 Nevertheless, the majority of reported decisions seem to follow Commonwealth. v. Zimmermann, in which the Appeals Court of Massachusetts upheld the denial of a motion in limine. The motion challenged EDR evidence as lacking in demonstrated reliability.19 The appeals court determined that there was no abuse of discretion when the trial court denied the defendant’s in limine motion based on the trial court’s finding that the EDR evidence was sufficiently reliable. In other jurisdictions, deference to trial court discretion may not be as extensive as the appeals court’s in Zimmerman.

Because raw data downloaded from an EDR is likely to be unintelligible to most judges and jurors, interpretation by technical experts, such as accident reconstructionists, is normally required. Such expert interpretations of what EDR data signifies should be based on clearly established expert qualifications and subject to cross-examination. In civil cases that admit EDR evidence, there are often two or more experts with different opinions about the interpretation of a particular EDR download. The potential ambiguity of such expert testimony is illustrated in Ortner v. Enterprise-Rent-A-Car, an unpublished opinion from the Los Angeles Superior Court.20 In this civil case, plaintiff and defendant introduced different technical EDR experts who interpreted the same EDR evidence differently and provided differing accounts of how and why the car crash occurred. Although no reported criminal case involves prosecution and defense experts disagreeing about technical interpretation of EDR evidence, offering a contrasting expert interpretation of EDR data may be a useful strategy in criminal trials as well.

Evidentiary Standards for Technical EDR Data
At present, information from EDR black box devices is admitted as evidence in courts around the country. When EDR evidence is introduced by prosecutors in criminal trials, it is usually presented as objective authoritative proof of speed, braking, or other aspects of a driver’s behavior. Defense lawyers should urge caution about such EDR evidence because it may mislead juries that can easily place undue weight on what was presented as objective, evenhanded, and reliable high technology data. Although EDR technology is improving, data from EDRs (particularly from those in older model vehicles) is variable and may have no precise meaning aside from a technical expert’s claims. For example, in some of the older EDRs vehicle speed has to be extrapolated from such factors as engine RPM, drive train data, and throttle position. These layers of calculation and interpretation open chances for miscalculation and error, and of course, should be probed by defense lawyers.

Because of the technical nature of EDR data, it will be subject to the varying admissibility standards across the country that apply to admission of technical or scientific information. The handful of reported EDR evidence decisions in criminal cases appears to show that jurisdictions that apply Frye21 standards to technical evidence are more likely to admit EDR evidence than jurisdictions that apply Daubert22 analysis before admitting technical or scientific evidence.

There are virtually no reported decisions with regard to admissibility of EDR evidence under Daubert standards. However, if the more stringent versions of Daubert requirements were applied to EDR evidence, it might be vulnerable to exclusion. For example, in United States v. Llera Plaza,23 Judge Pollock famously challenged the admissibility of fingerprint identification evidence under Daubert. Of course fingerprint identification evidence has been introduced in criminal cases in the United States for more than a century — far longer than the dozen years or so of experience with EDR evidence. Although Judge Pollock ultimately held that an FBI fingerprint expert could give opinion testimony regarding latent fingerprint evidence identifying a particular person, Judge Pollock described his role as that of a conscientious gatekeeper. He engaged in a lengthy and searching analysis of the five factors laid out in Daubert and applied to technical matters in Kumho Tire24: (1) whether the theory or technique can be and has been tested; (2) whether there is a known or potential rate of error; (3) the existence and maintenance of standards controlling the operation of the technique; (4) general acceptance in the relevant scientific community; and (5) whether the technical theory or technique has been subjected to peer review and publication.

Similarly, in United States v. Monteiro,25 Judge Saris applied these strict gatekeeping standards to hold testimony by a police officer about matching spent cartridge casings with particular firearms inadmissible because the evidence failed standards of documentation and peer review in the field of ballistics. Were such exacting analysis applied to EDR evidence, issues such as the lack of an established error rate and the many different types of EDRs, with varying capacities and reliability, might make admission of some EDR evidence objectionable. Further, EDRs are not all exactly alike. They vary across different types and years of vehicles. Reliability of EDR data always depends on the proper functioning of a network of sensors throughout a vehicle. As a result, EDR evidence needs to be presented by careful and well-trained technicians who are meticulous in handling the devices and data and modest about what the devices seem to reflect.

Defense counsel challenging EDR data under Daubert should point out that the NHTSA regulations that will become effective in 2012 and 2013 will only require a plus or minus 10 percent error rate for important factors such as Delta-V (measurement of changes in vehicle acceleration). At present, the error rate for EDRs in general is claimed to be plus or minus four percent. But this number has little relevance to a particular EDR because standardization has not yet arrived with regard to such significant EDR data as that related to speed. In publishing rules for standardizing EDR data by 2013, NHTSA explicitly noted that such matters as tire and wheel size and road conditions can affect the accuracy of speed data recorded by a particular EDR. This type of variability and error rate uncertainty would be relevant in a Daubert/Kumho Tire analysis of the admissibility of particular EDR data, from what is now a non-standardized EDR. Curiously, in Commonwealth v. Zimmerman, mentioned above, the Massachusetts Appeals Court stated that it was following Daubert, and noted that there had been a thorough evidentiary hearing in the trial court. But the appeals court ultimately relied on a “generally accepted” analysis that addressed only the fourth Daubert factor and seemed more similar to analysis of scientific or technical evidence under Frye. Defense counsel in states that apply Daubert/Kumho Tire standards for admissibility of technical evidence should be entitled to much more careful gatekeeping with regard to both technical experts and the technical devices and data they allow to be presented to juries.

Jurisdictions that apply a Frye analysis to determine the admissibility of scientific or technical evidence are more likely to admit EDR data as evidence. In fact, a number of reported criminal court decisions have admitted EDR evidence in such jurisdictions. For example, in Matos v. State,26 the Florida District Court of Appeals concluded that EDR data was generally accepted in the relevant scientific field and therefore admissible, after the court of appeals conducted de novo review under Frye. The court explained the four-step procedure courts use in making determinations regarding whether EDR evidence (a new or novel scientific principle or process) could be introduced through expert proof: (1) determine whether the expert testimony would assist the jury in understanding evidence or determining a fact in issue; (2) determine whether the expert testimony is based on a scientific principle that is “sufficiently established to have gained general acceptance” in the particular field; (3) determine whether the witness is qualified as an expert for the purposes of opinion testimony; and (4) leave it up to the jury to determine the credibility of the expert’s opinion.27 Courts in jurisdictions that apply versions of the Frye analysis to EDR data should be urged to be more probing with regard to whether the expert testimony would in fact assist or confuse the jury, whether EDR technology is sufficiently established to have coherent acceptance across the many types of devices with differing capacities, and whether an expert witness is qualified to testify about the particular EDR device and particular EDR data involved in the case. Defense lawyers should also explore the potential for mishandling of the EDR device or its data, even before the data reaches the expert, as well as compliance with warrant requirements.

In jurisdictions that apply the Frye analysis regarding admissibility of scientific or technical evidence, courts tend simply to find that EDRs are in routine use and admit the evidence for what it is worth. Of course, states vary somewhat with regard to applying the Frye test. But they typically find EDR data sufficiently reliable without looking behind the data to see where it came from, who interpreted it, whether the device or the data had been tampered with, and the like. Unreported decisions from such states as New York and California appear to follow this relaxed pattern in admitting EDR evidence.28

Conclusion
Discussions about privacy are almost absent from reported court decisions involving EDR evidence, despite the fact that privacy interests have energized states around the country to adopt statutes that restrict the availability, use, and potential misuse of EDR data. The fact is that increasing numbers of vehicle owners and drivers have “black box” data recorded by EDRs used against them in criminal proceedings without there being any warning that the black boxes even exist. Nor is there any possibility of driver control over the unknown black box in modern vehicles that silently records the driver’s behavior. That is one reason why criminal defense lawyers need to be especially vigilant in discovering and challenging EDR evidence that many people feel is an invasion of privacy.

It is important for criminal defense lawyers to know about at least some of the many technical intricacies of EDRs and the information they record. Additional information about EDRs is available on the Internet. For example, in addition to NHTSA, various accident reconstructionists and technical experts who work with EDRs and EDR data maintain Web sites with extensive technical information.29

As EDRs become more prevalent, criminal defense lawyers should urge courts to examine the nature of the evidence from these highly variable EDR devices and the extent to which EDR evidence should be admitted into evidence in criminal cases. Many courts have not yet considered EDR evidence. A court that has earlier admitted EDR evidence may be persuaded to look more closely at the particular type and capabilities of the EDR involved in the case before the court, as well as the quality of the information it seems to provide. Because EDR devices can be mishandled and EDR data can be lost, damaged, or overwritten, defense lawyers should demand a strict chain of custody for the device and for its contents. In many jurisdictions, a warrant and probable cause may be required both for access to the EDR and for access to the data the EDR contains.

Since there appear to be no standard jury instructions designed to assist juries in evaluating EDR evidence, defense lawyers should insist on proper instructions with regard to the reliability of the particular EDR data from the particular EDR device involved in the case. Courts, prosecutors, and defense lawyers — especially in criminal cases — need to bear in mind the warning about EDR data in the DOT report noted above regarding “the limitations of EDR data and [that] care should always be exercised when interpreting any EDR-reported parameter.” Although EDR data may be sufficiently reliable and useful in conducting general, mostly statistical, safety research, in the context of a criminal trial, EDR data can be unreliable and an inadequate basis for determining guilt beyond a reasonable doubt.

Notes
1. Estimates range from 40 to 50 million light vehicles (cars and light trucks) currently on the road. In other words, between 65 and 90 percent of all vehicles on the road are equipped with air bags and event data recorders.
2. “Sensing and Diagnostic Module” or SDM, is the term used by General Motors Corporation. Ford Motor Company calls the diagnostic module RCM for “Restraint Control Module.” Other manufacturers call it the Air Bag Control Module (ACM). No matter what name this module is given, each vehicle manufacturer embeds such a system that reads interlinked sensors throughout a vehicle equipped with an air bag. These modules are small computers that collect and analyze information used to activate passive restraints in the five to 10 seconds preceding a car crash or what the modules recognize as an impending crash. See “Use of Event Data Recorder (EDR) Technology for Highway Crash Data Analysis,” a report prepared for the Transportation Research Board by H.C. Gabler, D.J. Gabauer, H.L. Newell, and M.E. O’Neill (December 2004) at 7-20.
3. In 2006, the National Highway Traffic Safety Administration (NHTSA) estimated at least a fleet penetration of 64 percent. Event Data Recorders, 71 Fed. Reg. 50998, 50999 (Aug. 28, 2006) (to be codified at 49 C.F.R. pt. 563).
4. See Event Data Recorders, 73 Fed. Reg. 2168 (Jan. 14, 2008) (to be codified at 49 C.F.R. pt. 563).
5. See Crash Data Retrieval System Web site at http://www.cdr-system.com (last visited April 2, 2009).
6. In 2006, Vetronix merged into Bosch Diagnostics; see http://www.boschdiag
nostics.com (last visited April 2, 2009).
7. Event Data Recorders, 73 Fed. Reg. 2168, 2178 (Jan. 14, 2008) (to be codified at 49 C.F.R. pt. 563).
8. National Highway Traffic Safety Administration, Event Data Recorders, 47 C.F.R. pt. 563.
9. Event Data Recorders, 71 Fed. Reg. 50998 (Aug. 28, 2006) (to be codified at 49 C.F.R. pt. 563).
10. Event Data Recorders, 73 Fed. Reg. 2168 (Jan. 14, 2008) (to be codified at 49 C.F.R. pt. 563).
11. Analysis of Event Data Recorder Data for Vehicle Safety Improvement, U.S. Department of Transportation Research and Innovative Technology Administration, John A. Volpe National Transportation Systems Center (April 2008) DOT HS 810 935.
12. Id. at 78.
13. State v. Holladay, 2006 WL 304685 (Tenn. Crim. App. 2006); unpublished and subject to Rule 19 of the Rules of the Court of Criminal Appeals.
14. The defendant was ultimately found guilty; State v. Franco, 2008 WL 4462050 (Minn. Dist. Ct. 2008). The request for EDR data is contained in a trial filing by defense counsel found at 2008 WL 2308030.
15. A warrantless search was involved in State v. Holladay, supra, note 13. Some state legislation requires a separate warrant for EDR data, in addition to a warrant to remove the EDR device, and special care with regard to the vehicle to which an EDR is attached.
16. U.S. Department of Justice, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations 137-147 (July 2002).
17. Fed. R. Evid. 803(6).
18. See http://www.harristechnical.
com/articles/mvedr.pdf (last visited April 2, 2009).
19. Commonwealth v. Zimmermann, 873 N.E.2d 1215, 1217-1218 (Mass. App. Ct. 2007).
20. Ortner v. Enterprise Rent-A-Car, 2008 WL 2894510 (Cal. App. 2008) (unpublished and non-citable under California Rules of Court).
21. Frye v. United States, 293 F. 1013 (1923). Most jurisdictions applying Frye analysis of scientific or technical evidence have adapted the way the analysis is stated.
22. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Jurisdictions that apply Daubert analysis also tend to state the relevant factors in their own terms.
23. 188 F. Supp. 3d 549 (E.D. Pa. 2002).
24. Id.; Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).
25. 407 F. Supp. 2d 351 (D. Mass. 2006).
26. 899 So.2d 403 (Fla. App. 2005).
27. Id. at 406-07. A superior court in New Jersey also admitted EDR evidence after applying Frye analysis in State v. Shabazz, 946 A.2d 626, 633-634 (N.J. Super. 2005).
28. E.g., People v. Hopkins, 2004 WL 3093274 (N.Y. Co. Ct. 2004) and People v. French, 2003 WL 1904388 (Cal. App. 2003).
29. For U.S. Department of Transportation information about EDRs, go to the NHTSA Web site, http://www.
nhtsa.gov/, then click “Vehicle Safety Research,” then “Event Data Recorder (EDR)” in the left menu. The precise URL is http://www.nhtsa.gov/portal/site/nhtsa/menuitem.338d64bcebefdfd24ec86e10dba046a0/ (last visited April 10, 2009). Several engineering and technical services organizations provide EDR “primers,” e.g., information and technical papers that may be of interest to criminal defense lawyers. Among these resources are the Web sites for Harris Technical Services (http://www.harristechnical.com/cdr.htm) (last visited April 10, 2009); Mechanical Forensics Engineering Services, LLC (http://mfes.com/cdr.html) (last visited April 10, 2009); and Peter R. Thom and Associates Inc. (http://www.prtassoc.com/librarydefault.asp) (last visited April 10, 2009).


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