Category Archives: Technology

New App Tries Reducing Drunk Driving Deaths

 

A news article from NR Today, an Oregon newspaper, reported the Oregon Department of Transportation is pushing a new smartphone application that hopes to help impaired drivers get home safely. Read more here.

In short, the app, titled SaferRide, is a mobile phone program developed by the NHTSA and allows users to call a taxi or a friend. It shows the app users their location so they can easily be picked up.

New data from NHTSA shows that drunk driving deaths declined by 2.5 percent in 2013. Yet, even with this decrease from the previous year, 10,076 people died in crashes involving a drunk driver in 2013 — one death every 52 minutes. December 2013 was the month with the lowest number of drunk driving fatalities, 733 lives lost.

“This app easily and simply helps someone who is impaired get a ride or summon friends and do what it takes to get home safely,” said Dan Estes, DUII program manager for ODOT, in a release. “This app can accomplish a lot, and people need to know it’s available.”

Impaired driving can come from alcohol, over the counter or prescription drugs, illegal or recreational drugs, or other substances.

Representatives from ODOT, Clackamas County, Washington County, Oregon Impact, the City of Portland, OLCC, TriMet, OHSU ThinkFirst, AAA, Oregon Health Authority and Trauma Nurses Talk Tough came up with the idea while brainstorming ideas to tackle Oregon’s rise in crashes.

The app is available for Android devices on Google Play and Apple devices on the iTunes store.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Stingray “Spy” Devices

This undated handout photo provided by the U.S. Patent and Trademark Office shows the StingRay II, manufactured by Harris Corporation, of Melbourne, Fla., a cellular site simulator used for surveillance purposes. (AP Photo/U.S. Patent and Trademark Office)

Intimidating, no?

This suitcase-sized device, called Hailstorm or Stingray, is a controversial cellular phone surveillance device manufactured by the Harris Corporation. It is designed to sweep up basic cellphone data from a neighborhood and identify unique subscriber numbers. That data is then transmitted to the police, allowing them to locate a phone without the user even making a call or sending a text message. It’s the newest, most advanced technology in spyware which essentially allows police to observe, record and otherwise pinpoint your cell phone activity. And, of course, a growing number of police departments are purchasing these devices.

Stingrays cost as much as $400,000 and acts as a fake cell tower. The system, typically installed in a vehicle so it can be moved into any neighborhood, tricks all nearby phones into connecting to it and feeding data to police. In some states, the devices are available to any local police department via state surveillance units. The federal government funds most of the purchases, via anti-terror grants.

These devices are used to spy on people’s words, locations and associations. Stingrays can capture everything from metadata (who called whom, when, and sometimes from where) to the content of calls.

A news article from USA Today titled, Cellphone Data Spying: It’s Not Just the NSA describes how numerous police agencies across the country refuse to admit whether they’ve used Stingrays in surveillance. According to the article, most police agencies deny public records requests, arguing that criminals or terrorists could use the information to thwart important crime-fighting and surveillance techniques. Police maintain that cellphone data can help solve crimes, track fugitives or abducted children or even foil a terror attack.

The American Civil Liberties Union (ACLU) has investigated the use of Stingrays and has also successfully identified 54 agencies in 21 states and the District of Columbia that own Stingrays. Many agencies continue to shroud their purchase and use of Stingrays in secrecy.

A growing number of courts and legal authorities are increasingly wary on whether Stingrays violate citizen’s rights against unlawful search under the Fourth Amendment to the U.S. Constitution. For example,  in FROM SMARTPHONES TO STINGRAYS: CAN THE FOURTH AMENDMENT KEEP UP WITH THE TWENTY-FIRST CENTURY? attorney Brittany Hampton wrote a Note in the University of Louisville Law Review which discussed the questionable use of the Stingray devices by police agencies.

In her article, Ms. Hampton argues that individuals have a reasonable expectation of privacy in their movements when using their cellphones; therefore, the use of the Stingray constitutes a search within the meaning of the Fourth Amendment. She also discusses the need for the United States Supreme Court to develop a clear warrant requirement for the monitoring of an individual using the Stingray device. Ultimately, Hampton advocates a warrant requirement for utilizing the Stingray devices for police tracking purposes because the warrantless use of the Stingray is an unreasonable search under the Fourth Amendment.

My opinion? I wholeheartedly agree with Ms. Hampton, the ACLU and other legal experts on this issues. Using Stingrays is an unlawful search. Quite frankly, the government should not have carte blanche secret access to people’s cell phone use and information. It’s overly intrusive and distasteful that the government can, without warning, essentially use people’s cell data as pretextual evidence to investigate our whereabouts, listen to our conversations and ultimately charge us with crimes.

Even worse – and speaking as a criminal defense attorney – it’s disturbing that police agencies can use the information obtained from Stingrays as probable cause to obtain search warrants of people’s homes and seize evidence therein. Moreover, if I move to suppress the evidence gained from the search warrant as the fruits of an unlawful search, local police agencies deny and circumvent my Motions to Compel Evidence and Public Disclosure Requests by simply having the feds conduct the Stingray search. This is bad.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

State v. Afeworki: “Band It” Restraint Is Constitutional

In State v. Afeworki, the WA Court of Appeals Division I held, among other rulings, that a “Band It” prisoner restraint system worn by the Defendant during trial does not violate the Constitutional right to a fair trial or the presumption of innocence.

The Defendant Tomas Afeworki was charged with Murder in the First Degree. During pretrial proceedings, he experienced significant and ongoing conflict with each of his several attorneys. On the eve of trial, Afeworki repeatedly threatened his attorney, who was permitted to withdraw as a result. Afeworki was, thereafter, required to represent himself. He was found guilty.

On appeal, Afeworki contends that this deprived him of his right to counsel. After threatening his attorney, Afeworki was also required to wear a “Band It” physical security restraint, not visible to observers, while in the courtroom. Afeworki argues that wearing the “Band It” violated his right to a fair trial.

The court reasoned that under State v. Finch, a defendant in a criminal case is entitled to appear at trial free from all bonds or shackles except in extraordinary circumstances. This is to ensure that the defendant receives a fair and impartial trial as guaranteed by the Sixth Amendment and Fourteenth Amendment of the United States Constitution and the Washington State Constitution.”

In short, restraining a defendant during trial infringes upon this right to a fair trial for several reasons: (1)it violates a defendant’s presumption of innocence, (2) it restricts the defendant’s ability to assist his counsel during trial, (3) it interferes with the right to testify in one’s own behalf, and (4) it offends the dignity of the judicial process.

Washington case law also says that, given the constitutional implications of using restraints in a criminal trial, shackles or other restraining devices should only be used when necessary to prevent injury to those in the courtroom, to prevent disorderly conduct at trial, or to prevent an escape. That said, a trial court has broad discretion to determine which security measures are necessary to maintain decorum in the courtroom and to protect the safety of its occupants.

A trial court may consider the following factors in determining whether the use of restraints is justified: the seriousness of the present charge against the defendant, their temperament and character, age, physical attributes, past record, past escapes or attempted escapes, evidence of a present plan to escape, threats to harm others or cause a disturbance, self-destructive tendencies, the risk of mob violence or of attempted revenge by others, the possibility of rescue by other offenders still at large, the size and the mood of the audience, the nature and physical security of the courtroom and the adequacy and availability of alternative remedies.

The court described the “Band-It” restraint system as a device that essentially as a 50,000-volt taser contained in a band that is worn under a sleeve or pant leg. Unlike most restraints, which are either visible to jurors or readily perceived by jurors, the Band-It is not visible when the wearer is clothed. Also, unlike other restraints, the Band-It does not in any way directly constrain the wearer’s movements. In fact, the Band-It can cause a wearer’s movements to be constrained only when it is activated.

Here, reasoned the court, the Band-It restraint system does not implicate the presumption of innocence because it is not visible to observers. Moreover, it does not implicate the defendant’s right to the assistance of counsel because it does not physically constrain a defendant’s movements. Finally, the defendant’s antics, aggressive behavior and threats to his defense counsel justified the trail judge’s reasons for making the defendant wear the device:

“The court thereby fashioned a comprehensive order that protected both Afeworki’s constitutional rights and the safety of the people present in the courtroom for his trial. The trial court’s decision was reasonable. There was no error.”

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Distracted Driving Crashes Worse Than Previously Suspected

Distracted driving leading cause behind fatal crashes in 2016 - nj.com

Car crashes are the leading cause of death for American teenagers, but a new study suggests a far bigger problem.

The National Highway Traffic Safety Administration (NHTSA), which released a 2012 study using statistics based on police reports, previously estimated that teen distracted driving constituted 14 percent of all collisions. That study showed that teen drivers were distracted almost a quarter of the time they were behind the wheel.  Electronic devices, such as texting, emails, and downloading music, were among the biggest distractions, accounting for 7% of the distractions identified on the study video.

However, a study released in March by the AAA Foundation for Traffic Safety which used live footage instead of police reports. Their latest study on distracted driving found a 400 percent increase and concluded that distraction was a factor in nearly 6 out of 10 moderate-to-severe teen crashes. AAA analyzed the six seconds leading up to a crash in nearly 1,700 videos of teen drivers taken from in-vehicle cameras they knew were in their cars.

My opinion? Eventually, “Distracted Driving” will be criminalized. It took decades for statistics on fatal drunken driving crashes to translate into tougher DWI laws. I’m sure that advocates for strict laws against cellphone use by drivers encounter the same detached attitude today.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Bellingham Police Get Software to Map Crime Patterns

This screen-grab is a sample interactive map that shows criminal activity in the downtown Seattle area. Bellingham is buying similar Predictive Policing Software.

According to the Bellingham Herald, the Bellingham Police Department plans to buy “Predictive Policing Software” that will map crime patterns in the city and help officers decide where to patrol.

For those who don’t know, “Predictive Policing Software” is computer technology which uses advanced mathematics and algorithms to predict the times, locations and “types” of many crimes in any given jurisdiction. Police agencies can use this software to predict property crimes, drug incidents, gang activity, and gun violence, as well as traffic accidents.

The software, by Bair Analytics, will help compile reports currently put together by the department’s current crime analyst, who plans to retire soon.

According to the Bellingham Herald, officers currently use similarly compiled crime information to help detect criminal patterns and choose where they should focus their efforts. For example, if a series of home break-ins has been reported in a specific neighborhood, and officers see that similar methods were used to get into the homes, they start looking at what days and times those crimes happened to try to prevent another or catch the criminal in the act.

“A few years back we had a long series of rooftop burglaries and it took a while to catch the guys that were doing it,” Vander Yacht said. “We had to figure out the best times and places for them to do that.”

The software also allows interested citizens to sign up for alerts and view an interactive map of criminal activity in their area. The information included on the map is somewhat limited to protect the privacy of victims.

The map, which can be found at raidsonline.com, currently shows information for 15 Washington cities, including Seattle, Richland and Pasco. RAIDS stands for Regional Analysis and Information Data Sharing.

My opinion? Interesting technology. I don’t see if it violates people’s Constitutional Rights or infringes on their privacy. There shouldn’t be any problem with the implementation of this technology as long as the information does not target a particular individual.

Still, Big Brother only gets better at watching  . . .

Bellingham is buying predictive policing software that will map crime patterns in the city and help officers decide where to patrol. The software, by Blair Analytics, will essentially replace the Bellingham Police Department’s current crime analyst.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Is Texting While Driving the New DUI?

 

Police Officer Posing As Construction Worker

Recently, Marietta Police dressed up as a construction workers at a busy intersection to catch distracted drivers who were text messaging while driving. The police go as far as busting drivers who are texting while stopped at red lights. It appears that going undercover is an effective way to bust drivers texting, tweeting or checking emails behind the wheel.

“What we’ve done here is we’re able to put officers in the roads so we’re able to get close enough almost inside their cars so we can look down and see exactly what they’re doing on their phones,” said Marietta police Officer Nick Serkedakis. “I really think this is the DUI of the future. Impairment is still a problem, but this distracted driving is killing as many people as drunk drivers.”

The tickets are $150 and one point on your license.

Can a program like this – one where WA police officers pose as construction workers at certain locations to observe texting drivers – be implemented in Washington State?

Probably not.

This program is very similar to DUI checkpoints, which were basically outlawed in 2008. For those who don’t know, sobriety checkpoints (also called DUI checkpoints) are locations where law enforcment officers are stationed to check drivers for signs of intoxication and impairment. Many jurisdictions utilize sobriety checkpoints as part of their larger drunk driving deterrance program. Due to legal issues surrounding their use, not all states conduct sobriety checkpoints. Some states have laws authorizing their use. Others forbid them or are silent on the issue.

According to the Government’s Highway Safety Association (GHSA), Washington State is one of only 12 states which do not conduct DUI checkpoints. The story is interesting. In 2008, then-Governor Christine Gregoire wanted the state Legislature to authorize police to set up sobriety spot checks, a practice unseen in Washington since the state Supreme Court declared it unconstitutional in 1988 under City of Seattle v. Messiani.

Some background is necessary. In Messiani, the Washington State Supreme Court decided that the Seattle Police Department’s sobriety checkpoint program was constitutional. In short, police officers set up roadblocks where all oncoming motorists were stopped. The police lacked warrants and any particular suspicion of criminal activity. The City of Seattle argued that the State’s interest in the legal operation of vehicles outweighs any privacy interest under Article I, Section 7 of the WA Constitution. Ultimately, the Washington State Supreme Court concluded that the City of Seattle’s position was unlawful, and held that sobriety checkpoints were unconstitutional.

At any rate, Governor Gregoire’s proposed DUI Checkpoint legislation failed. The ACLU even got involved. In the end, Legislators simply lacked the political will overturn the WA Supreme Court’s City of Seattle v. Messiani. 

Unlike Washington, however, Georgia has  actively legalized DUI checkpoints. They are conducted weekly and aggressively; and upheld under the State of Georgia’s Constitution.

Due to the differences, I can’t see WA police officers successfully pulling off an anti-text messaging campaign like the Georgia police officers can. This campaign is too similar to DUI checkpoints, which are illegal in Washington State.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

New Smartphone App Warns You When You’re Too Stoned To Drive

 

Detects Marijuana Impairment

Technology. Gotta love it.

Canary has created a smartphone app which checks your mental and physical performance levels after ingesting marijuana and before driving. The app has gained widespread popularity and is sanctioned by NORML, an organization whose mission is to move public opinion to legalize the responsible use of marijuana by adults.

The app is straightforward: after logging in, it quickly subjects users to four basic tests: (1) a memory challenge where you have to recall six numbers that briefly appear on screen, (2) a reaction-time game where you have to quickly identify a particular icon from a series of images that pop up, (3) a time-perception assessment where you have to count off 20 seconds in your head as accurately as possible, and (4) a balance test that uses your phone’s accelerometer to gauge your ability to stand motionless on one foot.

After taking the tests, the app compares your results to a personalized performance baseline based on your past attempts at the app or norms built into the program.

Canary then determines whether your performance is impaired. At the end of the three-minute session, a green light means you’re not impaired, a yellow light means you should reconsider driving, and a blinking red light means you are impaired.

“This tool ideally allows cannabis consumers to take control and identify when they present a traffic-safety risk or when they may be under the influence,” says Paul Armentano, deputy director of NORML. “I believe this is information that all responsible marijuana users will want to know.”

The secret to Canary is that it doesn’t focus on potential markers of impaired performance, like levels of THC in your breath, but instead on performance itself. And since it launched weeks ago, Canary has been downloaded more than 10,000 times and is attracting attention from major marijuana players.

My opinion? Canary moves in the right direction. When it comes to marijuana use, drug tests such as urinalyses or blood tests are highly retrospective. The best those tests can do is assess lifestyle and acknowledge that the perpetrator consumed pot at some time recently.  However, these tests have absolutely no impact on whether you can perform. It’s unfair to prosecute someone who might have smoked a joint on Thursday and tested positive on Monday. So yes, testing someone’s performance before driving is absolutely critical to discovering if they’re too stoned to drive.

There’s a social justice incentive behind accurate marijuana impairment tests as well: Since African-Americans are far more likely to be pulled over and arrested for marijuana offenses than whites, an objective way to determine who’s high and who’s not could help level the playing field.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.