Nedlin: Big Brother watches | AspenTimes.com

Nedlin: Big Brother watches

Richard Nedlin
Guest Commentary

Technology today is cutting-edge and revolutionary and has made a profound impact on how criminal cases are prosecuted, defended and investigated.

Within the past decade, there have been numerous products that have been used, designed and geared toward crime prevention that have changed how criminal cases are viewed as a whole. At the same time, this “Big Brother” technology makes it more difficult for law enforcement and criminal suspects to “fudge” the facts, so the truth of what may have occurred during an alleged crime is exposed.

Let’s take the recent Justin Bieber arrest in Miami, for example. Beiber was stopped at 4 a.m. for allegedly speeding, or drag-racing, in a yellow Lamborghini against his friend, who was in a red Ferrari, police reports state. Law enforcement alleges that the two cars were traveling at a speed between 55 and 60 miles per hour in a 30-mph zone, and that was the reason for the stop.

At 4 a.m. in Miami, when a yellow Lamborghini and a red Ferrari are seen driving together, one usually would assume that something nefarious is going on. The police in this case just needed a pretext reason to stop the cars so they could justify the stop in order to briefly detain the individuals, and what better way than to claim that they were speeding or racing.

Come on — with two 400-plus-horsepower cars, no one would think twice about pulling them over under the guise of speeding. So now the police have their stop, claim that they smell alcohol on the breath and subsequently make an arrest on suspicion of driving under the influence, resisting arrest and no driver’s license.

See something missing? How come they did not charge him with speeding? Did it really happen, or was it just something that law enforcement thought could not be challenged? After all, whose word would a judge or prosecutor believe?

However, this is where technology can be a wonderful tool. The Lamborghini that Bieber was driving happened to be a rental. Presumably unknown to anyone, including law enforcement, there was a GPS device placed on the car by the rental agency in order to keep track of how fast their cars are actually going when they are being rented out. Ingenious! The information from the GPS tracking device, which was subsequently downloaded, stated that just prior to the time Bieber was pulled over for “speeding,” the GPS tracker showed that the car was going 27 mph at the time of the alleged race! I think someone has some explaining to do.

Another case where technology played a role took place in Colorado, where an individual had an interlock device in his car. This is a device that one must blow into in order to start the vehicle, and it will start only if there is no alcohol detected. In this one particular case, the individual stated that he had passed out in the driver’s seat of his parked car with the keys beside him. The officer stated in his report that the suspect had told him that he was sitting in the car listening to the radio but did not drive the car.

Colorado statute states that to be charged with a DUI you must be a driver of a vehicle, and “driver” is defined as being in actual physical control of a vehicle. Additionally, there is case law that states that a person in an automobile is deemed to be in “actual physical control” of the vehicle even if there is no movement of a vehicle, and it may depend on where the driver is seated and whether the keys are in the ignition, among other factors. Therefore, law enforcement can arrest you on suspicion of DUI even if the engine is not running. In this case, there were two different stories.

In this scenario, law enforcement was claiming that the suspect was at some point listening to the radio with the key in the ignition based on his supposed admission, and the suspect was declaring otherwise. The company that installed the interlock device was contacted, and all of the logs of the device were requested. With an interlock, you first must blow into the device, with no alcohol detected, in order to be able to turn the key to the “on” position, which then would give the radio a power source. Therefore, these logs would be the “smoking gun” as to whether the officer’s reports, and the statements supposedly made to him, were true and accurate.

As it turned out, the logs showed that the individual never attempted to blow into the interlock device, based on the data. In fact, there was no attempt to start the car or turn the ignition to the “on” position for at least six hours prior to the police contact. Hence, it would have been impossible for him to listen to the radio in the car, bringing into question the veracity of the officer’s statements. This bit of information led to the dismissal of a DUI.

Next month I will discuss how technology has helped in the investigation and prosecution of some cases and how social media are sometimes law enforcement’s best friend.

Richard Nedlin is a former prosecutor in Aspen and now practices criminal defense. He can be contacted at 970-309-8197 and richard@nedinlaw.com.


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