Tim Evans

The Indianapolis Star

INDIANAPOLIS -- If Gary Shinnamon goes on trial for a March 4 crash that killed a child, the most damning evidence against him isn't likely to come from victims or an eyewitness.

It will come from his 2010 Dodge Charger — more specifically, from a small data recorder attached to his car's airbag. The black box.

Welcome to the 21st century, when your vehicle may be keeping track of many aspects of your driving and, whether you like it or not, that information may be used against you.

Depending on whom you ask, the black box data recorders standard in nearly all new vehicles represent either another step into the grip of Big Brother or a valuable tool for vehicle manufacturers, law enforcement agencies and insurance companies.

Regardless of which side of that debate you fall on, experts say, the "event data recorders" are here to stay. The information they provide about speed, acceleration, braking and impact is being used in a growing number of court cases.

Marion County Deputy Prosecutor Tom Hirschauer said data from the recorders — a sort of poor cousin to the black boxes long common in airplanes — are now being used in an estimated 70 percent of criminal prosecutions in Marion County involving traffic accidents that result in serious injuries or fatalities. That is up from about 20 percent just a few years ago.

"The question we normally ask in an investigation is whether speed and breaking were a factor?" Hirschauer explained.

That question can often be answered by the data collected by the black box recorders.

"It tells us exactly what the vehicle was doing at the exact moment of impact and in the seconds just prior," he said. "It's real-time data from the vehicle. We are able to tell if a vehicle was accelerating, how much the throttle was open, the speed, whether the brakes were on or off."

The majority of new vehicles have recorders, and the federal government is expected soon to make them mandatory. Recorders operate whenever a vehicle is running, continually capturing information about key systems on a small hard drive.

The information is saved in half-second intervals, writing over itself every five to 20 seconds. When the airbag is deployed, a snapshot of the seconds before the crash is captured. While all recorders monitor speed and braking data, some also collect data related to engine RPMs, sudden swerves and rollovers.

Hirschauer said prosecutors typically do not use information from the recorders alone, but it can be a powerful and convincing supplement to other evidence from investigators and witnesses.

In the case against Shinnamon, 30, of Indianapolis, data collected after investigators obtained a search warrant for the Charger's recorder provide key evidence about his driving seconds before the crash.

A police report said Shinnamon was traveling eastbound on West 38th Street, approaching Guion Road, and ran into the back of a compact car, pushing it into a guardrail. A 7-month-old baby was ejected from the compact car and later died.

Shinnamon and a passenger ran from the scene but later surrendered to police. Shinnamon has been charged with several criminal counts, including reckless homicide, a Class C felony punishable by up to eight years in prison.

"The (module) in the black Dodge showed the vehicle was traveling 81 mph five seconds before the crash, ..." a court document says, "and 91 mph when the collision occurred. The data also revealed the engine throttle was 76.4 percent full (or open), and the brake switch was open, indicating there was no braking at the time of the crash."

The speed limit on West 38th Street was 40 mph.

"That data," Hirschauer said, "is the nail in the coffin for the reckless homicide charge."

Prosecutors also used information collected from a recorder in former Indianapolis police Officer David Bisard's patrol car at his trial in a fatal 2010 drunken driving crash. It helped investigators confirm Bisard's speed in the moments before the crash and pointed to driver inattention, revealing he did not brake until just before the impact.

Bisard was convicted Nov. 5 of nine felony counts of drunken driving, reckless homicide and criminal recklessness for plowing into a group of motorcyclists stopped at a traffic light. He is serving a 16-year prison sentence.

"This data helps us close cases," Hirschauer said. "It takes away the argument of how crashes occur."

Data recorders were not initially installed in cars, SUVs and trucks to help law enforcement solve crimes. In use since the mid-1970s, they were designed to collect data to help manufacturers defend product liability claims, said Richard R. Ruth, a retired Ford engineer who runs a consulting business that provides expertise in automotive restraint systems and event data recorders.

"Their original purpose," he explained, "was to help companies know if their airbags worked correctly."

The game changer came in 1999, when GM introduced a recorder that captured a vehicle's speed, RPMs, throttle position and braking.

"What was useful to GM was also useful to law enforcement," Ruth said.

That data includes measures of two factors critical to a criminal investigation: speed and driver inattention, which can be determined to a large degree by when a driver let off the accelerator and applied the brakes.

"It's not perfect," he said, "but it is much better than we ever had before."

Not everyone, however, likes the idea.

The use of the device represents another slide down a slippery slope to losing privacy and giving the government more information about personal actions, said John Whitehead, attorney and founder of the Rutherford Institute, a nonprofit civil liberties organization based in Charlottesville, Va.

"We're on the losing end of a technological revolution that has already taken hostage our computers, our phones, our finances, our entertainment, our shopping, our appliances, and now, it's focused its sights on our cars," he said. "Most people are not aware that evidence is there or available to prosecutors."

Whitehead acknowledged that law enforcement, with a warrant, has a right to obtain recorder data. His larger concern is what may come next, including the possibility that black boxes will evolve to capture and share with the government in-car conversations and information about where and when you travel.

Ruth said the laws around the country are unclear on whether a warrant is needed to obtain recorder data, but a 2011 appellate ruling in California determined a warrant is unnecessary.

About a dozen states, but not Indiana, require a warrant, and a bill has been introduced in the U.S. Senate that would require a warrant or the owner's consent before police could seize an event data recorder.

"In the United States, your home is your castle," Ruth said. "But the jury is still out on whether that extends to your vehicle."

In Marion County, Hirschauer said police obtain a search warrant from a judge before extracting data from a recorder. That eliminates any question about violating the Fourth Amendment prohibition on unlawful search and seizure.