Crash Reconstruction

1. Crash Reconstruction As is relates to Driving While Intoxicated

2. Why is a Crash Reconstruction Important? • Too many times evidence is lost that can be used in the prosecution of a drinking driver. • When a proper reconstruction is conducted evidence can be introduced into a trial by a qualified expert witness. • All to often the primary focus of a DWI crash is the arrest of the drunk driver. • If the primary focus is the drunk driver then evidence of neglect that could be used as evidence in charges of manslaughter could be lost.

3. Why is a Crash Reconstruction Important? • In the case of a serious DWI crash you may need an expert witness. • May officers, while very adept at crash investigation, may not be able to testify in court as an expert witness. • Expert witness can not only testify to the facts of a crash, but can also testify to their opinions. • This allows an expert witness to bring in elements of a crash that may not be seen in photos or on a diagram.

4. Preserving the Scene • Officers should be aware of the evidence needed to conduct a reconstruction • Evidence can be marked and then recorded at a later time. • Evidence can be marked with paint for later measuring. • Many times a second officer may be required to safety control the intoxicated driver and adequately mark the scene.

5. Photographs • Photographic evidence can be some of the most powerful evidence. • Don’t try to make the photos shocking or sensational – just photograph the scene and evidence. • Photos of the victims may not be allowed in a jury trial. • Photos of the vehicles, scene and evidence will almost always be admitted.

6. What Should You Mark? • Final resting place of vehicles • Post collision path of travel • Tire marks • Gouge or scrape marks • Should be measured so a scale diagram can be produced • Final resting place of any occupant thrown from a vehicle • Final resting place of any pedestrian involved • All tire marks • Impact area • Any fixed objects that were struck

7. What Should You Document? • Any regulatory traffic signs • Stop signs • Yield signs • School Zones • Speed Limits • Warning signs • Sight obstructions • Trees or other vegetation • Buildings • Vehicles

8. The Job Isn’t Always Easy • Building a case beyond just the DWI can be a difficult task. • It takes knowledge, evidence, and documentation. • You will need to go the extra mile to support the charge of manslaughter in a DWI crash. • Just because there is a drunk driver involved you must prove the additional negligence was involved. • That proof comes with evidence.

9. Negligence • In law, failure to exercise the degree of care expected of a person of ordinary prudence in protecting others from a risk of harm. It may render one civilly and sometimes criminally liable for resulting injuries. The doctrine of negligence does not require the elimination of all risk, but rather only foreseeable and unreasonable risk.The plaintiff must ordinarily prove the defendant's negligence with a preponderance of evidence.

10. What Can Help You Prove Negligence? • You will need to show • Excessive Speed • Failure to exercise the highest degree of care. • Time frames that will that show the intoxicated driver was outside what is seen in a “normal” crash. • Courts won’t just take the fact that a crash occurred with an intoxicated driver as proof of negligence

11. Negligence • If excessive speed can be proven with evidence and math it will be a strong building block in proving negligence. • Failure to Exercise the Highest Degree of Care MUST be quantified. • To just say someone should have been more careful will not stand up when attempting to prove negligence in a court hearing.

12. Negligence • Using time/distance calculations may be able to show negligence by… • Showing how much time the intoxicated driver had to react to a danger. • Whether or not they even recognized a danger. • Showing the other driver did not have any possibility of avoiding a crash while the intoxicated driver did. • Time/Distance can be a very powerful source for proving negligence – if the evidence is preserved.

13. Assault in the Second Degree • ASSAULT SECOND DEGREE-RSMo. SECTION 565.060(4) • Assault in the Second Degree in Missouri is a Class C Felony. A driver commits the crime of Assault in the Second Degree in Missouri if he or she, while in an intoxicated condition or under the influence of controlled substances or drugs, operates a motor vehicle while in the State of Missouri, and, when so operating, acts with criminal negligence to cause physical injury to any other person than himself.

14. Assault in the Second Degree • ASSAULT SECOND DEGREE • The term "criminal negligence" means failure to be aware of a substantial and unjustifiable risk that circumstances exist or a result will follow, and such failure constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.RSMo. Section 556.061(6) & 562.016.

15. Defense against Assault in the Second Degree • Typical defenses a Defendant may employ to the Missouri felony charge of Assault Second Degree are: Defendant was not the operator of the vehicle; Defendant was not intoxicated or under the influence at the time of the driving or the operation; Defendant did not operate the motor vehicle with criminal negligence, i.e., there is some explanation as to how the accident occurred which leads the jury to conclude the driver was not negligent; The person allegedly injured did not suffer a "physical injury."

16. Involuntary Manslaughter • INVOLUNTARY MANSLAUGHTER-RSMo. SECTION 565.024 • Involuntary manslaughter is a Class C Felony in Missouri. A driver commits the crime of involuntary manslaughter, if he or she, while in an intoxicated condition, operates a motor vehicle in the State of Missouri, and, when so operating, acts with criminal negligence to cause the death of any person.

17. Involuntary Manslaughter • "Criminal negligence" is defined the same as in the vehicular assault context above. RSMo. Section 556.061(6). • If a driver is convicted of involuntary manslaughter in Missouri, the court, in it's discretion, may Suspend the Imposition of Sentence (SIS). Unless the driver is a prior or persistent criminal offender, the jury imposes the sentence, not the court.

18. Defense against Involuntary Manslaughter • Typical defenses to felony charge of Involuntary Manslaughter are: Defendant was not the driver or operator of the vehicle; Defendant was not intoxicated or under the influence at the time of the driving or operation; Defendant did not operate the motor vehicle with criminal negligence; Some other intervening factor(s) caused the death of the other person such as medical malpractice in the treatment of the person's injuries.

19. Murder in the Second Degree • MURDER SECOND DEGREE-RSMo. SECTION 565.021 • Murder second degree in Missouri is a Class A Felony in Missouri. A person commits the crime of Murder in the Second Degree in Missouri if he or she commits or attempts to commit any felony, and, in the perpetration or the attempted perpetration of such felony or in the flight from the perpetration or attempted perpetration of such felony, another person is killed as a result of the perpetration or attempted perpetration of such felony or immediate flight from the perpetration of such felony or attempted perpetration of such felony.

20. Murder in the Second Degree • This "felony murder" prosecution may be brought against a driver who has an accident where a death occurs and the driver is committing a felony offense such as the felony offense of DWI-Persistent Offender, the felony offense of Driving While Revoked-Persistent Offender, Felony Resisting Arrest By Flight, or Felony Leaving The Scene of an Accident.

21. Murder in the Second Degree • This type of prosecution ups the ante considerably for the Defendant as this charge is a Class A felony, carrying a penalty range of 10-30 years or life. RSMo. Section 558.019. Since Murder in the Second is a dangerous felony as defined in RSMo. Section 556.061, the Defendant must serve 85% of any sentence he or she receives, if committed to the Department of Corrections. See State v. Pembleton, 978 S.W.2d 352 (Mo.App. E.D. 1998) for an excellent discussion of this topic.

22. Murder in the Second Degree • If you intend to charge an intoxicated driver with Second Degree Murder you will almost always need a reconstruction of the crash. • You will want someone who can testify as an expert witness as to the elements of the crash. • If you fail to collect the needed information and evidence a reconstruction may not be posstble.

23. Evidence to look for Offset or Deviated skidmarks Used to show area of impact and if a vehicle was on the wrong side of the roadway.

24. Evidence to look for Post Impact tire marks Needed to determine post impact speeds as well as departure angles.

25. Evidence to look for Lamps – they must be handled carefully. Can determine if lights were on at the time of the crash.

26. Evidence to look for Final Rest Positions Needed to determine post impact speeds.

27. Evidence to look for Gouge and scratch marks Needed to determine impact areas and post collision travel.

28. Evidence to look for Critical scuffmarks (or yaw marks) Show that a tire was sliding and still rotating. A critical scuff can show a true speed if properly documented.

29. Evidence to look for Fixed Object Damage Can help determine contributing pre-impact factors as well as help determine post collision travel.

30. Crash Data Retrieval Diagnostic Link Connector DLC

31. Crash Data Retrieval Our vehicle was a 2001 Chevrolet Caviler. We need the VIN to obtain the information. TheCDR is located below the right front seat.

32. Crash Data Retrieval The CDR as it was mounted in the vehicle.

33. Crash Data Retrieval The CDR ready for a bench download. The CDR after removal from the vehicle.

34. Vehicle Speed (mph) 100 90 80 Engine Speed (rpm / 100) 70 60 50 Percent Throttle 40 30 20 Brake Switch Circuit Status (100 – On) 10 0 -5 -4 -3 -2 -1

35. Crash Data Retrieval • The information can be downloaded directly through the DLC. • If the damage is so severe that the connection can not be made through the DLC the module can be removed and a bench download completed. • The module can be retained as evidence. • Remember there are court cases currently being litigated about the gathering of CDR information. • The safest way to ensure the admissibility of this evidence is to obtain a search warrant.

36. Conclusion • In any crash where a drinking driver is involved you should always document the physical evidence carefully. • Many times it is difficult to know exactly how serious the injuries might be. • If the evidence is not properly documented and recorded at the scene, it is often not available at a later date when needed for a prosecution. • Don’t let a sloppy accident investigation cost you a conviction.

37. Questions ? Allen Hines, ACTAR #1074 2thirty@mchsi.com