Drunk Driving Consequences Offense
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California Supreme Court Allows Police to Read Text Messages
California Court Allows Police to Review Text Messages by Darren Chaker
In People v. Diaz, --- Cal.Rptr.3d ----, 2011 WL 6158 (Cal.), the California Supreme Court addressed whether police may review text messages contained on a phone belonging to a person who has been arrested consistent with the Fourth Amendment. The court also addressed a secondary issue whether reviewing the text messages 90 minutes post arrest was proper. The court answered each question in the affirmative.
The dissent acknowledged mobile phones like Blackberry, iPhone, etc. may contain information up to 32 gigabytes. However, the court did not address the fact many smartphones also are tied into individual email, Facebook, MySpace, and similar accounts. This information is within the scope of being protected ‘content'.
The contents of a user's email account, stored on an email provider's computers, are akin to the contents a wire containing telephonic communication. Email users store "virtual" papers and effects (emails) in a "virtual" containers (the email account) that is owned by another (the email provider); the user's password serves as the key to the locked virtual home, assuring its exclusive use. I believe such would cross the line of violating federal law. The Stored Communications Act provides a cause of action against anyone who "intentionally accesses without authorization a facility through which an electronic communication service is provided" and obtains access to a communication in electronic storage. 18 U.S.C. § 2701(a)(1), 2707(a). See also, United States v. Councilman, 418 F.3d 67, 76-77 (1st Cir. 2005) (en banc) (by defining "electronic storage" broadly, "Congress sought to ensure that the messages and by-product files that are left behind after transmission, as well as messages stored in a user's mailbox, are protected from unauthorized access."). Thus, "anyone" is "anyone" and law enforcement is not excluded. The SCA has a specific provision for law enforcement to access content, however believe by the court failing to address email or other content tied into a mobile phone could create further confusion since some officers may infer since text messages are contained on a phone, as are email, then all is fair game.
Nonetheless, the court taketh privacy, technology giveth privacy. Here are some simple counter measures to employ if you fear anyone viewing anything on your phone.
Use a password to secure your phone. Most do not. If asked for the password by police, understand another person asserted his right to not disclose information to access his encrypted files, and the court stated he had a Fifth Amendment right to refuse disclosing his password. See, In Re Bouche , United States District Court for the District of Vermont, 2007 WL 4246473 (Nov. 29, 2009)
Encryption. Applications for smartphones are available to create an encrypted folder on your phone where sensitive files may be stored. Likewise, passwords may be encrypted and automatically fill in login information for websites you access. If you are using a BlackBerry Enterprise Server, then the data that flies back and forth between your handheld and the server is encrypted. The data stored on your handheld is a different story. Content Protection will encrypt your emails and other content stored in the machine. By choosing this option, you will be protected if someone were to connect the device to a USB port and attempt to read its memory.
Wiping Application. Just as with computers, software or ‘apps' are available to download that will wipe internet usage history, prior text messages, and call history. Each category may be specified by the user.
Wipe SD Card. Most smart phones come with a mini SD card that hold up to 16+gb. Just as with computers, a SD acts as the smartphone's hard drive. As such, deleted information remains unless specifically wiped in a secure manner. Solution? Use a wiping utility from your computer and either plug your phone into your computer so the SD card mounts like a hard drive, =and able to be securely wiped with software from your computer. Alternatively, remove the SD card and place into SD slot of computer that will be recognized by your computer to be wiped. If you have an iPhone, it will mount as an external drive and file slack may be securely wiped thereafter. I suggest wiping information on a routine basis.
Remote Wipe. Most anti-malware apps have the option of remote wiping. This option allows someone to text a message to your phone, that will commence a wiping sequence of all information on your phone. A question comes to mind whether this could be construed as destruction of evidence. My answer is "it depends". If you call your friend and ask "please send a text to my phone" then, I find it difficult to think your friend could be imputed with knowledge he assisted you in destroying evidence. On the flip side, a charge may be filed against you if evidence was on your phone material to what's alleged. For example, if you are charged with texting threating messages, then I could see the material nature of your phone. However, if you are arrested for DUI and simply don't want your phone viewed by police, then I do not see any nexus to a pending charge.
For most people a password should suffice, along with the knowledge you have the right to refuse access to your phone under your Fifth Amendment right.
About the Author
It's a little too much to write here, so see Extended Author Bio.. Darren Chaker
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Who Will Look Out For Drunk Drivers' Interests?
Driving while intoxicated whether it is drugs or alcohol is a serious offense in the state of Arizona. Many a lives have been ruined due to this broad based charge. It seems that if an Officer of the Law even suspects you are under the influence of some mind altering chemical he has the right to subject you to not only an embarrassing road side sobriety test but also the commonly malfunctioning breathalyzer.
The combinations of these "procedures" have cost many people not only their right to drive but also in some cases their freedom. The Officers submitting individuals to these tests don't seem to take into account some people have disabilities, which could hinder the roadside sobriety test. Ailments such as clubfeet, Parkinson's disease, and other such illnesses that affect the balance would cause a stone sober person from successfully passing the roadside test. Other common illnesses would also cause a person some difficulty with this so-called "sobriety" test. Illnesses such as an ear infection, which affect person equilibrium, could cause an Officer to believe the person to be intoxicated even if they weren't.
The laws are designed to protect the public from those who choose to drive while intoxicated. The methods of determining intoxication seem to be lacking accuracy. The Officers involved in these situations should be trained to take into account that not all it was it first appears to be. There are extenuating factors that should be taken into consideration.
I agree that driving under the influence is a very irresponsible and dangerous thing to do. But shouldn't it be proven beyond a shadow of a doubt that this crime is actually being committed before punishment is meted out? The methods allowed by law don't seem to prove any such thing. With the inaccuracies and unreliability of such methods, shouldn't there be more? If Officers of the Law were to spend more time asking questions of the driver and spend less time focused on the prejudices aimed at drivers who drive while under the influence, maybe less innocent people would be forced to engage in defending themselves against this serious crime.
It is supposed to be innocent until proven guilty but it has been my experience in this matter not to be the case. Once a person is charged with a DUI it becomes their duty to prove their innocence whether through expensive representation or the gathering of medical documents, either way it becomes time consuming and expensive. Whether the funds are spent on legal counsel or physicians it will cost the accused financially.
The Law Enforcement Officers involved with such matters should be less eager to get a conviction and more eager to protect and serve. They may be under the assumption they are protecting when they get a "drunk driver" off the streets but who is there to protect the "drunk driver" when he's not a "drunk driver"?
About the Author
MyDUIAttorney.org is a directory of qualified attorneys, lawyers and firms who deal with drunk driving cases and help defend those charged with a DUI offense. The directory provides a source of marketing and lead generation for these attorneys, lawyers and law firms, making it easy for DUI offenders to search and contact qualified professionals who can help them.