Justice Or Injustice For The Auto Black Box?

By Perry Zucker

Submitted February, 2004

Leading NYS Criminal Case
Issues
Conclusion

Every automobile accident has proximate cause(s); mechanical and/or operator error(s). The true causes of these accidents rely on the knowledge and the experience of engineers. Newer vehicles have onboard computers that gather limited data on certain aspect of performance; codes, etc. Some of this data is being used as a phantom "Automobile Black Box". Various groups are trying to draw parallel references to the "Airplane Black Box, which is the furthest thing from the truth. Unlike, the "Airplane Black Box", which has the capability of recording positioning, actual travel velocity (speed and direction), safety device(s) utilization, mechanical problems, operating errors, as well as audio in the cockpit / compartment.

Leading NYS Criminal Case

On October 18, 2003, Mr. Robert Christmann was involved in a fatal automobile pedestrian accident. He was sited for Speeding (NYS VTL 1180 d1) and Failure to Exercise Due Care (NYS VTL 1146). The local police contacted the State police for assistance to conduct an accident reconstruction. At trial the State trooper testified, that he was able to use three (3) methods to determine speed of the defendant's vehicle, they are as:

"Head Strike" measurements; measurement of the impact of the pedestrian onto the vehicle's windshield (up to 50% error),
Tire marks / accelerometer (up to 41% error). These aforementioned methods have many stacked potential errors.
Thirdly, a laptop computer was used to download information from Mr. Christmann vehicle's computer (Sensing Diagnostic Module).

It bears mentioning that there was no testimony given about the accuracy of the SDM and/or other methods used in this case. The defendant was found guilty on the speeding charge based upon the Officer's testimony at trial.

Issues

Was the data retrieval in the defendant's vehicle a violation of his 4th and 14th Amendments of the US Constitution or Article 1 Section 12 of the NYS Constitution?
What government standards are in place for the system that will mandate certain accuracy levels?
In most cases in NYS to be convicted of a speeding violation in which the officer was not present during the time of the incident (NYS VTL 1180 d1) the State must prove: 1) Reliable accepted (calibrated) speed measuring device(s). In this case the data recorder can not be check and/or calibrated for accuracy. In other words some of the data recorders may have different accuracy levels, then others.
Why do some auto manufacturers (OEM) provide software codes for their vehicles (GM, Ford, Isuzu), but other OEMs refuse to provides their codes?

Conclusion

The "Black Box" is currently, not being used for the original intended purpose, which was for diagnosing vehicle related problems by mechanics. These so-called automobile "Black Box" data recorders measure wheel speed and not ground speed; which is the actual speed in which the vehicle in question is traveling. This is an important factor, which is based on road conditions and vehicle positions in relationship to the referenced roadway. Motorists should be very concerned about this device and the misuse. The answers to many tough questions will indeed have to be addressed regarding privacy issues, admissibility, and the use of "Black Box" data recorders.

About the Author: Perry J. Zucker, Degreed Engineer (several degrees in engineering as well as technology), provides technical reports, pre-trial preparation, and expert witness testimony concerning vehicle related accidents (reconstruction), traffic violations, general accidents, and product liability cases, for both plaintiffs / defendants and civil / criminal. He is a member of SAE, IEEE, ASME, State Appellate Div. Expert Panel, ASE certified, State vehicle inspector and a certified speed measuring device operator / instructor. His office can be reached at (718) 375-5063 or visit him on the web at trafficdoc.com.