Article: "CDR Evidence Suppressed by Oklahoma Court," Hall, G.

2010 Vol. 5 Iss.1

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ollision C The International Compendium for Crash Research

Volume 5 Issue 1

Collision: The International Compendium for Crash Research

Spring 2010

Common Post-impact Speed Analysis Effect of Directional Tires on Wet Traction

CDR Technology An Abbreviated History

WET or FROZEN

ACM Access Considerations

Volume 5, Issue 1 - Spring 2010

Rollover Crash Reconstruction A Variable Deceleration Rate Approach

Insurance Applications

For CDR Legal Considerations

If you found this article useful, look into a subscription to Collision Magazine at www.CollisionMagazine.com

Find out more about the next EDR User’s Summit at EDRSummit.com

Contents

SPRING 2010

of interest 10 8 12

Calendar of Events My Turn at the Wheel "Gear-Up!"

16

Effect Of Directional Tires On Wet Traction

features

- H. J. Herzlich, Robert Swint, Edward Ritsch and B. Unser

28

wet or frozen acm access considerations - Sean Haight

36

28

Insurance Applications for Crash Data Retrieval, Legal Considerations - Michael Merolli, David Brink, Patrick Conran, and Jasmine Garcia-Vieux

44

CDR Evidence Suppressed by Oklahoma Court

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- George Hall

50

An Abbreviated History Of CDR Technology - Rusty Haight

74

A Variable Deceleration Rate Approach to Rollover Crash Reconstruction

74

- Nathan Rose

84

Retrieving and Interpreting Data from Ford Powertrain Control Modules using the Bosch Crash Data Retrieval Tool

96

- Bruce McNally

96

Common Post Impact Speed Analysis - Greg Russell

104 EDR Module Types and Collision Data Available in CDR Supported Vehicles - Chuck Veppert and David Little www.collisionpublishing.com

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d e s s e r p p Su George Hall P.E. Hall Consulting

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bstract A 2-vehicle fatal collision occurred in Oklahoma in August 2006 when the driver of a General Motors (GM) pickup crossed the center line and collided with a passenger sedan.

The driver of the sedan died from the collision and the driver of the pickup was charged with manslaughter. As part of the investigation by law enforcement, the GM Sensing & Diagnostic Module (SDM) was downloaded using version 2.8 of the Bosch Crash Data Retrieval (CDR) software. A paper copy of the CDR report was included in the investigation file, and the downloaded file was kept on the officer’s field computer.

The author was retained by defense counsel to assist in understanding what the public refers to as the "black box" data. The author immediately advised counsel to obtain a copy of the original down-

loaded CDR file. The defense subsequently requested a copy of the CDR file and it was eventually discovered that the file had been lost. The defense then moved to suppress the CDR evidence, and a hearing was held to argue the motion. From the time of the download till the hearing, the CDR software had advanced by 5 versions. The defense argued that it needed the downloaded file so as to be able to examine it using the latest version of the software. The defense further argued that the CDR report printed at the time of the download should be suppressed as evidence since the software advances could yield a different report if the original CDR file were available for examination in the latest version of the software. The court agreed and sustained the defense motion to suppress, thereby preventing the CDR report from being admitted as evidence. This finding has significant implications for everyone involved with this technology.

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ase Background.

A 2-vehicle collision occurred in Oklahoma in August 2006 when the driver of a 2000 GM pickup crossed the center line and collided with a 1993 Plymouth Cobalt sedan. The driver of the sedan died as a result of the collision. Figure 1 is taken from the official Oklahoma collision report and shows the collision incident. Vehicle 1 is the 1993 Plymouth Cobalt sedan and Vehicle 2 is the 2000 General Motors pickup.

The following is a timeline showing significant aspects of this case from the author’s perspective: • • • • • • •

Aug 2006 – Collision Aug 2006 – CDR download (5 days after the crash) Apr 2007 – Author retained as defense expert, recommended obtaining the CDR file Dec 2007 – Obtained electronic files from state, no CDR file was included Jan 2008 – discovered CDR file was lost Dec 2008 – Hearing on defense Motion to Suppress CDR evidence Jan 2009 – Court rules to suppress CDR evidence

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Figure 1. Collision Scene.

As shown in Figure 1, the driver of the GM pickup initially drifted off the road to the right, overcorrected and went into a yaw, then crossed the center line and collided with the sedan. As part of the investigation by law enforcement, the GM SDM was downloaded using software version 2.8 of the Bosch CDR system. The speed limit at the scene of the collision was 45 mph and the CDR report from the GM pickup indicated a speed of 74 mph at the "minus 5" time value. The driver of the GM pickup was subsequently charged with manslaughter. A paper copy of the CDR report was included in the investigation file, and the downloaded CDR file was kept on the officer’s field computer. Figure 2 is a table scanned from a paper copy of the CDR report which shows the pre-crash data recorded by the SDM.

DR File Lost The author was retained as an expert for the defense in April 2007, approximately 8 months after the collision. Vehicle Event Data Recorder (EDR) information is a relatively new technology to the legal community, and the author was retained primarily to evaluate the data and assist defense counsel in understanding it. In addition to the usual documentation dealing with the collision incident, the author was provided with a black & white paper copy of the Bosch CDR report. The GM pickup had been salvaged and hence was unavailable for the author to download. The author recommended that defense counsel obtain a copy of the downloaded CDR file for evaluation using the latest CDR software, and that request was made to the prosecution. The request to obtain the CDR file as submitted by defense counsel read specifically: "Copy of the actual download files from the "black box" information taken from the defendant’s vehicle, sometimes known as the CDR file. " While the use of the term "black box" is technically incorrect and frowned upon by the expert community, it is effective in conveying the meaning to non-experts. In addition to the CDR file, the mapping files from the survey of the scene were also requested. In December 2007 defense counsel provided the author with electronic files received from the state, but they consisted only of mapping data and the CDR file was not present. After some back and forth between the attorneys, in January 2008 it was discovered that the CDR file had been lost and the paper copy of the report was the only CDR related evidence remaining. Defense counsel filed a Motion to Suppress the paper copy of the CDR report; in other words, defense counsel asked the court to prevent the paper copy of the CDR report from being admitted as evidence.

A hearing was scheduled for December 2008 to argue the Motion to Suppress the paper copy of the CDR report.

" " Figure 2. Pre-Crash Data.

Documentation in the police investigative report indicates that the CDR download was performed under authority of a search warrant.

Documentation in the police investigative report indicates that the CDR download was performed under authority of a search warrant. Further documentation indicates that the CDR information was included on an "Evidence List and Chain of Custody" form.

There is no mention of specifics regarding chain-of-custody transfers of the CDR file and later testimony indicated that the file was simply kept on the officer’s field computer.

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It isn’t difficult to imagine how the CDR file could have been lost; or for that matter, how any such digital file can be lost. Computer data must be regularly backed up to insure against loss. In this particular incident, it appears that the only copy of the CDR file was the one that existed on the officer’s field computer. The hard drive on the officer’s field computer failed some months after the download. Attempts to salvage the hard drive were later made by computer experts, but they were unsuccessful. In addition to hardware failures, files can be lost by intentional deletion to create more space. Police computers may be re-assigned to other officers and their contents may be deleted as part of the process of setting up the computer for another purpose. Regardless of the reason, it should be clear that computer data will eventually be lost if it is not backed up.

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hy is the CDR File Needed?

The Bosch CDR software version 2.8 was used to download the file and to generate the report in August 2006.

Prior to the hearing in December 2008, the CDR software had advanced by 5 versions (versions 2.81, 2.9, 2.91, 3.0, & 3.1). Each new version brought changes to the software, some of which could be characterized as significant. Each new version of the software may include functional changes, fixes to identified software "bugs," changes to the format of the report output, and additional capability to interpret the data contained within the airbag control modules (ACM). Some of the changes to the software have been detailed very specifically and are contained in the "readme.txt" file that accompanied new releases from version 1.0 through version 3.0. For example, the change "added 8 second brake switch data" is a specific change that informed users would understand. However, some changes are noted only very generally and the user has no way of knowing exactly what the change comprised. For example, the change "updated data limitations for GM vehicles" does not tell the user anything specific about the changes made, but it does tell the user that the Data Limitations section of the CDR report for at least some GM vehicles will now be different than it previously was. In that case, the only way to determine if there were any changes to a specific GM vehicle CDR report is to open the data file using the latest version of the software and compare the CDR report output with the output from the older software version. Commencing with version 3.1, changes to the software can be found in the "What’s New" section of the Help file.

Because there is an ongoing process of improving the software and eliminating "bugs" that may discovered, it is imperative that the user always utilize the latest version of the software to open the data file and interpret the data. Otherwise, it is possible that the software may not correctly interpret the data file. Commencing with version 3.1 the software includes this notice on the first page of the report; "IMPORTANT NOTICE: Robert Bosch LLC recommends that the latest production release of Crash Data Retrieval software be utilized when viewing, printing or exporting any retrieved data from within the CDR program. This ensures that the retrieved data has been translated using the most recent information including but not limited to that which was provided by the manufacturers of the vehicles supported in this product."

An example of a change in the Data Limitations section can be seen regarding the status of the driver’s seat belt in GM vehicles as shown in version 2.61 vs. version 2.81. In version 2.61 the statement in the Data Limitations section states "Driver’s Belt Switch Circuit Status indicates the status of the driver’s seat belt switch circuit."

This is a very straightforward explanation of this data field. However, contrast this with the statement from the Data Limitations section in version 2.81 which states "Driver’s Belt Switch Circuit Status indicates the status of the driver’s seat belt switch circuit. If the vehicle’s electrical system is compromised during a crash, the state of the Driver’s Belt Switch Circuit may be reported other than the actual state." With version 2.61 we could conclude that the driver’s seat belt was either buckled or not dependent on the CDR report. However, changes made to version 2.81 indicate that this data field may not be reliable if the vehicle’s electrical system was "compromised" during a crash. This may drastically change the meaning and our interpretation of the data field regarding whether or not the driver’s seat belt was buckled in a given case.

An example of a functional or operational change occurred commencing with version 3.1 software. Prior to this version, the GM power booster was recommended to be used for all downloads of both GM and Ford vehicles. However, commencing with version 3.1 of the CDR software, the GM power booster is only recommended for certain GM vehicles. This change affected the way that users actually operated the equipment.

In addition to keeping the file original CDR so that it can be opened and evaluated using the latest version of the software, there are other reasons that the CDR computer file is needed in place of a paper copy of the CDR report. Paper reports are easily modified. "Liquid paper" or other such products can be used to erase values on a paper report such that the erasure isn’t noticed when the report is copied again. Although they may look genuine, paper reports can’t be verified as having been produced by the CDR software. The computer operating system includes a date/time stamp when a new file is created or an existing file is modified. This date/ time stamp provides an audit trail regarding the file; if the CDR file is lost, then so is this audit trail. The airbag module type isn’t listed in the CDR report, but it can be determined by opening the CDR file with a text editor as shown in Figure 3. Figure 3 shows a CDR file that has been opened in the Microsoft Notepad text editor, and shows that the module is an SDMG2000 type.

Figure 3. Module type identified with text editor.

The CDR software can produce an Adobe Portable Document Format (PDF) report file that can be distributed for convenient access by others who do not have access to the CDR software. However, the PDF computer file is not a substitute for the downloaded CDR file. The PDF file can’t be used to determine module type and it can’t be re-evaluated using updated CDR versions. It should also be noted that PDF files can be modified. Software exists to convert PDF files into other formats such as Microsoft Word. Once converted, the report values can easily be changed and the report can then be saved back to a PDF file. The following points summarize the need to keep the CDR file: • • • • •

File can be re-evaluated using updated versions of the CDR software The CDR file is needed to verify that a paper report originated from the CDR file Computer files have a date/time stamp that creates an audit trail The module type can’t be determined without the CDR file PDF files can also be modified

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istory Of Software Changes Since the CDR software first debuted some 10 years ago, there have been 47 known versions from the original version 1.0 (February 2000) to the current version 3.4 (January 2010). The CDR software and hardware was originally developed by the Vetronix Corporation. Vetronix was purchased by Bosch, and Bosch now maintains the software and associated hardware. The software is an application that downloads and interprets the data contained within vehicle electronic control modules and provides a report of the interpretation. Because this is a cutting edge application, the software has undergone numerous changes and improvements.

Included with this issue is a CD that has a file titled "CDR-Version-History." This file contains a listing of all the known versions

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of the CDR software and the changes that were made to each version. As relates to the Oklahoma case, the pertinent versions are those showing the changes that occurred between version 2.8 and version 3.1. For example, version 2.9 allowed an additional 3 seconds of braking data to be displayed in the report. This is a very significant change that knowledgeable users would understand.

Amongst other changes, version 3.0 updated the Data Limitations for GM air bag control modules. This is a general change that can only be evaluated by comparing the Data Limitations sections of reports produced by earlier versions with the report produced by version 3.0. These examples illustrate the primary reason for keeping the CDR file, which is to allow the file to be evaluated using the latest version of the CDR software. The following bullet points include some of the significant changes made by newer versions of the CDR software. The list is admittedly subjective, and others might argue that significant changes occur in other versions than shown below.

CDR 1.0 issued Feb 2000 1.66, Oct 2002 • The term "near deployment" was changed to "non-deployment" 2.0, Feb 2003 • added Ford vehicles • pdf report output 2.8, Nov 2005 • Engineering Translation Report, certain GMs • CAN bus cables 3293, 3320, 3321 required new hardware interface 2.9, Jan 2007 • Additional 3 secs pre-crash braking for GM (8 secs total) • Rollover module support on some GM (hex data only via DLE) • Side airbag deployment data became available for certain GM 3.0, Jan 2008 • Chrysler coverage • Ford PCM downloads • GM Rollover Sensor support 3.1, Dec 2008 • Warning notice added to 1st page of CDR reports • 3 more secs of pre-crash data available on certain Chryslers • Notice that it may be necessary to re-image some Chrysler ACMs to get additional data

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ourt Hearing on the Motion To Suppress A hearing was held in December 2008 in state court for arguments on the defense motion to suppress the CDR evidence. The state admitted that the CDR computer file had

been lost and that attempts to recover it had been unsuccessful.

The prosecution introduced an expert witness and presented the position that the paper copy of the CDR report was adequate and should stand alone without the CDR computer file. The author testified as an expert witness for the defense and opined that the CDR computer file was necessary to properly evaluate the data using the latest software. The issues regarding the necessity for having the computer file can become rather complex and difficult to explain in the environment of a courtroom. Much of the reasoning discussed above in the "Why is the CDR File Needed?" section was presented to the court. After the hearing was concluded, the court took approximately 1 month to issue the following ruling (capitalization is as appeared on the order): "IT IS THEREFORE ORDERED, ADJUDGED AND DECREED, that the Motion to Suppress of the Defendant, as to the crash data module information should be and the same is hereby sustained."

Using simpler terminology, the court agreed with the defense that the CDR paper report should not be admitted as evidence. Some of the logic used by the Court to arrive at this decision is pertinent for the education of professionals involved with this technology.

For instance, as shown in this excerpt from the court’s decision, it is clear that the court understood the need to use the latest version of the software to interpret the CDR file: "The Court is satisfied by clear and convincing evidence, free from unmistakable doubt based upon the testimony of the experts that by reason of subsequent updates to the software services that there is a high potential that additional information could have been obtained if this information had been provided and retained and not lost."

It’s important to note that while the court understood that there was a potential for obtaining additional data using the latest software, there is no mention that the data might have been favorable to the defendant. The data may have been favorable to the defendant, or it may not. The point is that the court’s ruling was based on the fact that loss of the computer file constituted a loss of evidence. The court realized that the paper copy of the CDR report produced by an older version of the software was not equivalent to having the computer CDR file. Additional clarification of the court’s logic regarding the loss of the CDR computer file can be seen from the excerpt below: "The state did not make a bonafide good faith effort to maintain the integrity so it could be tested by the defense and it is even heightened ten times by the fact that these additional updates could have obtained more information that could have been highly relevant."

As is often the case with lost evidence of any type, the party who lost the evidence is looked upon unfavorably by the court. As shown by the excerpt above, the court recognized the importance of having the computer file available so that it could be evaluated by the defense. It’s worth noting that the court emphasized with the "heightened ten times" phrase that it understood the importance of having the computer file available so that it could be opened with the latest software update. Also worth noting is the fact that the court used the phrase "could have been highly relevant" with regards to data that might have been obtained using the latest software version. The court did not conclude that any new data from a report produced by the latest software would have been relevant, only that it could have been relevant and it didn't specify whether it would be relevant for one party of the other.

The state admitted that the CDR computer file had been lost and that attempts to recover it had been unsuccessful.

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ther Potential Issues Related to the Court’s Decision The court’s decision relates only to the computer CDR file. Early in the development of this technology, there existed an argument among users as to whether or not it was necessary to harvest and preserve the electronic module(s) that contained crash data or whether it was sufficient to just download the data file and preserve it. The prevailing viewpoint has been that downloading and preserving the data file is sufficient and that it is not necessary to harvest and preserve the electronic module(s). However, this viewpoint was challenged by the recent introduction of Chrysler vehicles as part of the version 3.0 software release. Chrysler vehicles that were imaged (downloaded) using version 3.0 software did not capture all of the available data, and it was necessary to re-image these vehicles using version 3.1 software (to capture all the available data). If the vehicle was no longer available when the version 3.1 software was released, then it would not be possible to re-image unless the module had been harvested and preserved. The prevailing thought is that this was a "one off" situation brought on by the introduction of a new manufacturer’s vehicles to the CDR system, and that it isn’t necessary to harvest and preserve electronic module(s). However, one can envision the possible legal entanglements brought about by loss of evidence that occurred from not harvesting the module.

The available training courses emphasize the need to preserve the CDR file.

This line of reasoning can be expanded even further to include an argument as to whether one should preserve the entire vehicle so as to prevent any "loss" of evidence. When the CDR technology was first introduced, the only module that contained retrievable event data was the airbag control module (ACM) in GM vehicles.

Some Ford powertrain control modules (PCM) contain data that is now retrievable by the CDR system, and some GM rollover sensors (ROS) also contain data that can now be retrieved by the CDR system. The amendment to Chapter V of Title 49 of the Code of Federal Regulations (49 CFR Part 563) is scheduled to become effective for model year 2013 vehicles, and specifies the type of data that must be recorded by vehicles with EDRs. However, 49CFR563 does not specify which module(s) records the data. Between now and the enactment of 49CFR 563, it is likely that new vehicle manufacturers will be added to the CDR system. Some practitioners have been harvesting and preserving module(s) from collision vehicles that are currently unsupported in anticipation that they may later be supported by the CDR system. The obvious question relates to which module(s) should be preserved. While the ACM and PCM are obvious candidates for most vehicles, there may be data contained in other module(s) as well. Failure to preserve the entire vehicle, or at least to harvest all the electronic modules that may store data, could be considered as a "loss" of evidence. It should be noted that the author is an engineer and does not claim to have any legal expertise, and that this discussion of "potential" legal issues is presented only for your consideration as a professional involved with the CDR technology.

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onclusion The defendant in this case was originally charged with manslaughter. Some time after the court ruled to exclude the CDR evidence, the case was settled by the defendant agreeing to enter an alcohol treatment program. This court decision will be considered by others. It is likely that other "lost CDR file" cases will arise as the technology expands to include more vehicle manufacturers and models. The available training emphasizes the need to preserve the CDR file. Figure 4 is a slide from the CDR Technician course as taught by certified Technician Trainers.

Procedures (SOPs) may already exist that include backups and archiving of computer files, but these procedures must be effectively communicated to field personnel. If SOPs don’t already exist to ensure that CDR files are preserved, then they should be developed. Engineering firms often have a "Quality Assurance" manual that contains protocols for archiving and storing computer data.

As with law enforcement agencies, it is imperative that field personnel from engineering firms be made aware of the necessity to backup and archive original CDR computer files.

Figure 4. Slide from the Collision Safety Institute's Standardized Technician Training Course.

The lessons learned from this case regarding the necessity of keeping the original CDR computer files can be extrapolated even further. For example, it isn’t difficult to envision a corollary situation regarding data files from mapping instruments. Total station survey instruments and Global Positioning System (GPS) instruments both create data files which are used by Computer-Aided Drawing (CAD) software to create maps. Failure to maintain these computer files for examination by the opposing party could be cause for a motion to suppress the maps from being admitted as evidence.

This could then conceptually cascade to include suppressing momentum and/or energy analyses that were based on distances determined from the maps and to suppressing animations and/or simulations that were based on the maps and the momentum and/ or energy analyses. Electronic data files from test instruments should also be archived and maintained. Examples include data files from recording radar or accelerometers used for brake or acceleration testing.

Professionals involved with the CDR technology need to develop procedures to preserve the downloaded files. Loss of the downloaded CDR file may result in the CDR evidence being excluded from trial, even if a paper copy of the CDR report exists.

Note the question in Figure 4 regarding preservation of the data.

Several other slides in the CDR Technician course also discuss the importance of saving the data. Law enforcement agencies should consider their procedures for saving and archiving the original CDR file so that it is available for all parties. Standard Operating www.collisionpublishing.com

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