While driving, have you ever asked yourself “How did I get here?” and realize the last minute or more was a complete blur? If so, you are guilty of distracted driving. The Philadelphia Bar Association partnered with The Philadelphia Association of Paralegals to present a highly informative CLE, “Driver Distractions, Cell Phones and In-Car Devices,” on March 11, thanks to Kevin O’Brien, partner at Stampone O’Brien Dilsheimer Law and Dr. Justin Schorr, president and principal collision reconstruction engineer at DJS Associates.
There are three types of driving distractions: manual (hands off wheel), visual (eyes off road) and cognitive (not paying attention). If you have a touchscreen in your vehicle, you are distracted in all three ways when looking at and touching that screen. Another problem is using distracted driving by others as an excuse to exhibit the same behavior, like changing the radio station or checking directions. In just two seconds, cars traveling at 60 mph can cover almost 200 feet.
For several years, car manufacturers have automatically included a “black box” (a/k/a event data recorder or EDR), with the latest models recording every electronic event, such as the car’s speed and opening-closing of doors. EDR data is event-based, locked in once the event occurs with a date-time stamp. And, if you didn’t pay attention to the setup prompts when pairing your phone with your car’s Bluetooth technology, you may be automatically sharing everything on your phone. That includes metadata (e.g., detail about a picture on your phone) and deleted data – like phone calls and texts you thought were gone for good. Deleted items do not disappear – they move to unallocated space on your phone which deletes items only when the history is full. Unless you delete items frequently, all deleted data may be stored on your phone and downloaded to the EDR.
EDRs have the capacity to store years of information. Even with a factory reset, deleted data is still stored and recoverable forensically. Think twice before allowing a rental car to download your phone’s data! To determine what data elements are available for specific vehicles, visit BERLA (https://berla.co/vehicle-lookup/).
When investigating a distracted driving case, be sure to send a letter to preserve and examine the data as soon as possible with as many specifics as possible. Cell phone records are not a reliable source compared to the actual cell phone or EDR.
For collision cases, establish whether driver distraction was involved and whether that impacted the physics of the crash. For severe injury resulting from accidents involving a tractor trailer, collision avoidance systems that should have been standard issue by manufactures such as Mack, Volvo and Freightliner may warrant a product liability action.
I attended this CLE via webinar, another great feature for all live CLEs, which the Bar has offered since 2016. Note that distance learning for Pennsylvania attorneys is limited to six credits from accredited providers per compliance period.* The Bar is not only an accredited provider, but also offers members six free CLE/CJE credits – via three two-credit courses – annually for specific sessions.
*This article was written at the beginning of the pandemic. PA attorneys are now permitted to take all required 2020 credits remotely.
Reprinted with permission from the April 2020 edition of the Philadelphia Bar Reporter © 2020 Philadelphia Bar Association. All rights reserved. Further duplication without permission is prohibited (contact (215) 238-6300 or firstname.lastname@example.org).