My law blog regarding dashcams

Discussion in 'Legal Questions' started by esqu1re, Dec 4, 2015.

  1. esqu1re

    esqu1re New Member

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    Hello all. I am attaching the substance of my law blog regarding dash cams here. It is written for the layperson, so you may find the info about dashcams a bit basic. Hopefully, you can find some of the legal information useful. The original blog entry, with embedded links, can be found here: http://www.gandwlaw.com/blog/dashcams

    Thanks for looking!

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    “Dashcams” are video cameras mounted inside vehicles that begin recording when the engine is turned on or when they sense movement. A portmanteau of the words “dashboard” and “camera,” dashcams start at around $40 and go up in price from there. They come in a variety of form factors and can be mounted on the dashboard, the windshield, and on the inside rear view mirror.


    Most dashcams have just one forward-facing camera, but some have the ability to attach a remote rear-facing camera. In addition to recording video, most can also simultaneously record audio. Higher end models have GPS and accelerometers to overlay location, velocity, impact force, and other data over the recorded video. The idea is that if an accident were to occur, the driver will have an objective record of what happened – like a black-box for the car. Potentially, “he said-she said” disputes could be resolved by video evidence.


    In this article, I will discuss the legality of dashcams, whether they will reduce your insurance premiums, and ultimately, whether you should get one.


    Are dashcams legal?

    Yes. In Maryland, there is no law prohibiting the installation of an aftermarket camera inside a vehicle. However, beware of laws that prohibit the obstruction of the view through the windshield. See Maryland Transportation Code §§ 21-1104 (c) and (d). Most dashcams that are intended to be mounted on the windshield are smaller than the typical suction-cup mounted navigation system and can be mounted in a way that arguably will not interfere with the clear view through the windshield.


    There are privacy concerns as well. If the dashcam is also recording audio, you must be careful not to run afoul of your state’s “wiretapping” laws. All states have, in some form or another, restricted recording private conversations. Because your personal vehicle is a private place, you may have to get the consent of all passengers before recording audio. This could be problematic if the dashcam begins recording as soon as the engine is started.


    Laws vary between states. In some states, only one party to the recording must know that audio is being recorded. Other states require notification or consent of all parties to the recording. Maryland Code Ann., Cts. & Jud. Proc. § 10-402 requires that all parties to a private conversation provide consent before one can begin recording.


    Using a dashcam to record video on public property, such as streets and parking areas, is almost always permitted as there is little to no expectation of privacy in public areas. Additionally, recording an on-duty police officer (both video and audio) is permitted as long as you do not interfere with the officer’s duties. In 2010, a judge threw out a case where a man was arrested for taping his own traffic stop and posting it to the internet, and in 2012, the Baltimore Police Department released a directive stating that police officers cannot prohibit videotaping of law enforcement activities in public. However, if the police suspect that a dashcam may contain evidence of a crime, the police may temporarily take the dashcam, but may not view the video until a warrant is granted.


    Are there insurance discounts if you purchase a dashcam?

    Dashcams have become extremely popular in Asia and Europe, where fraudulent claims made against drivers are rampant. Search for “dashcam insurance fraud” when you have some time – the videos of thwarted attempts at defrauding drivers may shock you. In fact, many insurance companies in Europe and Asia incentivize dashcam ownership by providing discounts to drivers who install dashcams. Most American insurance carriers have not yet followed suit. Many, however, are providing usage-based discounts if you plug in their telematics device into your vehicle, which allows the insurance carrier to monitor your driving habits. These telematics devices are plugged into the vehicle’s “OBD II” port, often found underneath the driver-side dash area, and permit an insurance carrier to monitor different aspects of how the vehicle is driven, including among other things, vehicle speed, acceleration, distance driven, vehicle location, and the time of day of vehicle operation. Snapshot®, In-Drive®, and SmartRide® are some examples of these devices. Potentially, dashcams could be included as part of future telematics suites offered by insurance carriers as part of their usage-based discounts.


    Should you get one?

    Maybe. A dashcam with GPS, accelerometers, and multiple cameras may cost between $150 to $350. That might turn out to be a good investment if it the video and any interlaced data vindicate you. For example, when someone backs into you and then claims that you rear-ended them.


    On the other hand, your dashcam could implicate you as the at-fault party. If you did rear-end someone, and an action is brought against you, your dashcam footage could be the subject of a document request during the discovery phase of trial. Further, intentional spoliation or destruction of evidence is prohibited, and you could be in violation of those prohibitions if you fail to take measures to preserve the footage following an accident (i.e., deleting the video). See Klupt v. Krongard, 126 Md. App. 179 (1999). At trial, there may be an adverse inference against you for deleting the video – that is, it may be inferred that you deleted the video because it showed that you were at fault.


    As useful as dashcams can be in trial, just because there is footage of the accident does not mean that it will be dispositive of your case or can even be used at court. The video may not capture the offending vehicle or the point of impact, it might be too blurry, or it just might not provide a clear picture of what actually occurred. Even if there is speed, location, or data showing impact-force, arguments can be made that the dashcam’s sensors were not correctly calibrated. Like all evidence, the footage will be given the weight it is worth by the judge or jury.


    Ultimately, whether you should get a dashcam or not is highly dependent on your driving habits. If you are an aggressive or inattentive driver, or think you might be more likely to get into an at-fault accident, you should probably not install a dashcam. However, if you are a cautious driver who obeys the traffic laws, having a dashcam may prove useful if an accident occurs.


    Nonetheless, in Maryland, I recommend against purchasing a dashcam that also overlays or imbeds vehicle speed if you often drive faster than the speed limit. If you are exceeding the speed limit and are involved in an accident, even one that you do not think is your fault, the velocity data could be used to argue that your excessive speed contributed to the accident.


    One final thought about dashcams: Dashcams could also be useful in a traffic stop situation where a driving infraction may be the subject of interpretation (e.g., “aggressive” driving) or a result of mistaken vehicles (e.g., the officer mistook your car for the similar car next to you that was speeding). Given the recent news related to police misconduct in Baltimore, New York City, Ferguson, and many other places, a dashcam may help to keep everyone honest about traffic violations.


    A dashcam has the potential to vindicate as well as incriminate its owner. As they decrease in price, become more sophisticated, and increase in popularity in the United States, what “he said or she said” about an accident may eventually take a back seat to what the video “said.”
     
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  2. GTA Driver

    GTA Driver Well-Known Member

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    Well written article. I find some documents written, albeit legal documents, such as fishing regulations and software licenses a difficult read.


    My thoughts exactly. I have become more defensive and observant of rules since installing one. In Toronto, apparently the police have charged the provider of video as the provider was the initial aggressive driver and not the chief offending driver.

    I know some extended family members that have not changed their driving habits since getting into an accident. They would be the last people who should get a cam.



     
  3. dash riposki

    dash riposki Well-Known Member

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    It's nice to see you have the latest, most high tech dash cam as an example on your blog.

    :)
     
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  4. esqu1re

    esqu1re New Member

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    I find software licenses difficult to read as well! I don't think I've ever read one completely through.

    For people like you, a dashcam could be beneficial. Besides the evidentiary benefits, you end up being a more aware driver and are probably likely to drive aggressively/dangerously (because the dashcam is "watching" your driving style).

    Ha! I did not pick that picture, but you might be surprised at the lack of quality, royalty free images, one can use out there.
     
  5. sludgeguts

    sludgeguts Well-Known Member

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    "Should you get one? Maybe"
    Maybe?
    How about 100% definitely YES. A camera is an essential tool on today's roads in order to avoid being taken to the cleaners by all the idiots out there who are better at lying than they are at driving.
    Without video evidence, insurers are tending towards 50/50 since it's my word against theirs.
    Chuck a nice, juicy video into the mix and the question of fault is undeniable.
     
  6. esqu1re

    esqu1re New Member

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    In your scenario, I would agree that it is nice to have a dash cam.

    But, what if I were a terrible driver who was more likely to cause an accident? Would it really behoove me to have a dash cam?

    Or, what if I was speeding when someone made an improper last second lane change into my lane, causing an incident?

    In Maryland, it is possible that a jury, after reviewing the dash cam footage and underlying velocity data, could find that my negligence (speeding), even if slight, bars me from any recovery.
     
  7. dash riposki

    dash riposki Well-Known Member

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    Good. :)

    That's the way it's supposed to work.
    :)
     
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  8. jokiin

    jokiin Well-Known Member Manufacturer

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    as it should
     
  9. sludgeguts

    sludgeguts Well-Known Member

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    Even the idiots are using cams though. there's been a couple of cases where some fool has shown his video to all his mates & one of them has 'leaked' it to police, leading to a conviction.
    If you are using a camera which doesn't show gps/speed on the screen then any slight speeding wouldn't be too obvious anyway.

    One other point - insurance discounts. People need to be aware that if an insurer offers a discount for camera use, they are, in effect, buying all rights to the footage & would expect to see all raw files every time a claim is made.
    If the camera just happens to break before the incident, this might not look so good.
    The idiots on the roads are very good liars & can put forward a very persuasive argument. If you can't provide footage, it might not look so good on your claim.
     
    Last edited: Apr 17, 2016
  10. HSG

    HSG New Member

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    You don't have to come forward with evidence if you do not wish to. In fact, it would be unwise to present evidence that would work against your favor in court. :p
    On the speeding question, unless there's some easy/visible way to show your speed, i doubt someone one a jury is going to accurately calculate your speed based on a video you provide.
     
  11. dash riposki

    dash riposki Well-Known Member

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    In a serious enough case, a jury member is not going to calculate your speed via the video.
    A paid expert witness will, or the police.

    If the jury gets to see video of you driving like a maniac around the time of the incident they'll come to some easy conclusions. :)
     
  12. GTA Driver

    GTA Driver Well-Known Member

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    And even if you don't provide incriminating evidence, here I have seen consecutive cars with non discreet dash cams. Here, its very possible a witness may have a dash cam.

    The collision I filmed in September showed both parties failing to obey traffic laws.

    All the more reason drive to start driving safely
     
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  13. Gabacho

    Gabacho Well-Known Member

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    +1
     
  14. dash riposki

    dash riposki Well-Known Member

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    And numerous security cams you probably don't know are there. It's amazing when the situation is serious enough how cam footage surfaces. :)
     
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  15. GTA Driver

    GTA Driver Well-Known Member

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    I guess all the more reason to tell the truth. In another thread, there is an officer who hit a bicyclist, claimed he had his lights and sirens on and behind him was car with a dash cam that shows differently
     
    Last edited: May 20, 2016
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  16. esqu1re

    esqu1re New Member

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    You might want to check your rules of civil procedure. A request for production of documents will usually ask for any videos or pictures of the accident, in which case you will have to produce the footage to the opposition.
     
  17. HSG

    HSG New Member

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    Yep, you're right. Seems that in CA, you have to produce documents for inspection if requested. I suppose the legal way around that one would be either (1) don't let on that you have a dashcam and maybe they won't know the production of documents rule or (2) don't save the video and it'll be overwritten eventually, then you can truthfully say you don't have any documents to produce (but then how will you upload the video to youtube and get many views?).
     
  18. esqu1re

    esqu1re New Member

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    Hate to burst bubbles all the time, but what your suggesting has potential pitfalls. Assuming an accident causes significant damage, the opposing side would most likely retain an attorney. The attorney, as a matter of standard operating procedure, would request all documents, including videos, regardless of whether there is any indication of whether you might have a dashcam or not.

    Secondly, not saving the video for the purpose of having it write over itself (essentially deleting the video), could run you afoul of spoliation rules. Even if it doesn't, it may look badly if at trial it is revealed that you had a dash cam (presumably for the purpose of recording accidents), got into an accident, and then did not take a few simple steps to retain the footage. The jury/judge could conclude that what was on it was not favorable to you and that's why you let it write over itself.

    Again, not saying dash cams are not useful; just those who are accident prone or bad at driving probably should not have video proof of their lack of driving prowess all the time.
     
  19. Gary D

    Gary D Member

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    That's an interesting question. While I don't disagree with you, by the way, I have to wonder just how far it goes... (And I'm not trying to be reasonable in the following questions.. I'm just wondering where the edge of the legalities might be.)

    Let's assume a camera/storage combo that gives about 4 hours of video before things overwrite. Now, assume I have a 1 hour commute (each way) daily. So, that gives me 2 days of video (assuming average commute times and no extra trips in the car.)

    How long am I required to block overwriting (and therefore not record what I want on my own camera/storage) before I'm free of any spoliation issues? A week? A month? A year? 7 years? Exactly how much video am I required to retain? The instant of the accident? 3 minutes? 10 minutes? The entire commute?

    Do I have to put that camera (and the storage card within it) on the shelf and never use it again just in case some attorney MIGHT eventually want to see it? (I phrase things this way because many cameras come with a storage card, and it's reasonable that many people would falsely assume that it's the only storage card guaranteed to work in that camera --- and therefore wouldn't consider taking the storage card out for safe keeping and putting in another one.)

    Then there's also the question of willfulness. If I actively delete the footage, I've obviously acted willfully to destroy something. However, if I do nothing out of the ordinary (which would result in the footage being overwritten within 1.5 days), am I willfully destroying something, or am I just a layman that didn't know any better?
     
  20. esqu1re

    esqu1re New Member

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    One thing I've learned as an attorney is that a lot of issues in litigation would not occur if people acted reasonably in everyday matters. So, in that regard, I would say let what you believe a reasonable jury/judge would think is reasonable be your guide.

    Is it reasonable for a driver with video evidence to not keep the video for at least 1.5 days? A month? A year? What's the price on a replacement 16gb microSD card nowadays? Would it be reasonable to take the card out and buy another so that one could keep the evidence? Anything that a jury finds to be unreasonable is going to cut against the person who they believe did something unreasonable. The implication is that the person acted unreasonably because he had something to hide. Obviously, people make mistakes. A novice user may not know how to preserve evidence regardless of whether he was at fault or innocent. Some truths (and lies) are easier to believe than others---so a jury may find it reasonable that a novice could drive on believing that the dash cam can record indefinitely or will send everything to a cloud drive.

    There is no hard line on what is reasonable. Every Judge/Jury is different and their judgment on what constitutes reasonable behavior will be different to a degree. If we act reasonably we can only hope that others will see it as so and judge accordingly.

    Hope this helps.
     
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