Was A Semi-Truck Crash Properly Investigated? Only if it Has ECM Data

Michael GrossmanMarch 15, 2018 7 minutes

It's not uncommon for me, or someone else writing in this space, to suggest that people should almost always seek an independent investigation after a serious 18-wheeler truck accident. For many this is common sense advice, but others tend to ask, "What can an attorney do that the police don't already do?"

I appreciate that kind of skepticism. Just as people shouldn't take anything that I say on faith, I don't think that people should treat a police report regarding an 18-wheeler accident as gospel.

Engine Control Modules and 18-Wheeler Accident Investigation

My view that people should seek independent investigations after a commercial truck crash only grew stronger, when I came across a study that suggested that police only obtain engine control module (ECM) data in roughly half of all such incidents. For those who don't know, the ECM is the computer that functions as the brains of your car, controlling things like fuel mixture, emissions, and other engine processes. They also create a record of data about how it was driven, such as speed, braking, and seat-belt usage.

If data about speed and braking strikes you as something that a police crash investigator might find useful for determining what happened in an accident, then you and I are in agreement. Think of if this way: in many instances aviation accident investigators have a pretty good idea why a plane crashed without looking over the plane's flight data recorder (black box). Does that mean that they should just go with their initial suspicions and leave the data untouched? Of course, not.

Like airplane black box data, the information ECMs record has the ability to either confirm what investigators initially believe happened or raise issues they didn't initially consider. While some might think that as a truck accident injury firm, our attorneys are just out to get truck drivers, the fact of the matter is that ECM data can bolster a truck driver's version of events just as easily as it can contradict them. At the end of the day, any investigation is about uncovering the truth. A firm like ours has handled hundreds of truck crash investigations over the years, and if there's one thing we know for certain, it's that there are enough irresponsible truck drivers out there to keep attorneys busy for decades. That means we have no reason to go after the vast majority who haven't done anything wrong.

It's fair to wonder: if ECM data is so useful, then why is it missing from 50% of commercial truck accident investigations?

Reasons the Police Don't Always Include ECM Data in Their Reports

While it should be obvious that no police crash investigation is complete without ECM data, there are numerous reasons why this data only ends up in half of 18-wheeler crash police reports. Some of the reasons are good, others not so much.

The most obvious reason for not including ECM data is that the engine control module doesn't always survive the wreck. Commercial trucks are large and carry tons of cargo. When 80,000 lbs. of truck and cargo crash, there's a very real possibility that certain parts of the truck will be obliterated. This holds true for the ECM as well. Sometimes trucks catch fire after an accident, which can burn the entire vehicle, ECM included, to the frame. While this certainly happens, it definitely does not happen 50% of the time.

If the engine control module doesn't work or is destroyed in a crash, then obviously there's no data to include in the accident report. The problem is that, even for many accidents where the ECM remains intact, the police never look at the data contained in it. There's a couple of common reasons for this. First, accident investigation is only a tiny portion of a police officer's responsibilities. As a result, most officers don't receive more than the most basic training when it comes to accident investigation, which is usually geared toward passenger vehicle crashes. Many police tend to look at 18-wheeler collisions as just really big car wrecks. However, commercial vehicles are so much larger, involving forces orders of magnitude higher than passenger accidents, that they are a completely different type of crash.

Another issue that arises with police 18-wheeler accidents investigation is that their goal is to uncover potential crimes, not help you pursue a civil case against the trucking company. Just like any other criminal investigation, police have to conduct their inquiry and at the same time still respect the civil rights of the accused. Since ECMs are the property of whomever owns a particular truck, police cannot just take that property and examine it without permission or a warrant, and getting either isn't a simple matter. After all, what are the odds that someone will simply volunteer potentially incriminating evidence? Also, judges don't issue warrants to allow the police to examine private property unless a crime is committed and the police can show a court that they have reason to believe that an ECM is evidence of that crime.

Since the vast majority of commercial truck accidents don't involve a crime, but a violation of civil law, there are many times when the police don't have access to the ECM for legal reasons. It makes sense that police aren't going to go through the trouble of getting a warrant to look at the ECM when a trucking company refuses to cooperate, only in the name of handing out a speeding ticket. In such circumstances, a police investigator's hands are tied.

How common is this particular phenomenon? While no one knows for sure, it makes sense that if a trucking company believes their driver caused a serious accident, they're certainly not going to go out of their way to hand over a piece of damning evidence, just so that the police can include it in the accident report. Once there is a public record that the trucking company screwed up, they may owe any injured victims compensation for their injuries. The incentive for trucking companies to avoid financial responsibility is too great a temptation for many to resist, and they can essentially hide evidence until they're legally compelled to turn it over.

With so many factors stacked against them, it's a testament to the professionalism of police officers that commercial truck accident police reports get as much right as they do. However, when the issue is what caused a serious or fatal commercial truck accident, close to the truth isn't the same thing as knowing exactly what happened.

How Attorneys Can Obtain Data that the Police Cannot

Unlike the police, truck accident injury attorneys don't have a million other job responsibilities. Their primary focus is seeing that truck accident victims are able to hold wrongdoers accountable for their reckless behavior. You can't hold someone accountable without knowing what actually happened and the ECM regularly plays an important role in finding out the truth.

The first tool that an attorney has, and a police officer doesn't, is a letter of spoliation.* This is the legal term for the letter that puts a trucking company on notice that they're being investigated. Part of being on notice is that a trucking company has a duty to preserve any evidence relevant to the investigation, including the engine control module. If the trucking company destroys evidence after receiving a letter of spoliation, then the court is free to penalize the trucking company further down the line, in ways that usually make it much harder for the trucking company to win their case. In short, this is a powerful tool.

Just as the police have the power to go to a court and ask for a warrant, attorneys have the power to ask a court to compel a trucking company to hand over evidence. This is done through a subpoena, which is just the formal name for a court order to produce evidence. An attorney's subpoena power can often be a far more effective tool than a police warrant, because while a trucking company still has plenty of protections in a civil proceeding, they are far less robust than they would be in a criminal matter. Simply put, it's far easier to get a judge to force a defendant to hand over an ECM when the defendant isn't facing possible jail time.

I realize some people may find it hard to believe, but truck accident injury attorneys have all of these powerful investigative tools at their disposal simply by virtue of having filed a case. In addition, they lack a lot of the distractions that police officers have, by virtue of the different nature of their profession. That's why in many instances where the police are unable to obtain ECM data, attorneys can.

*To be fair, trucking company employees can face criminal charges related to destroying evidence in a criminal investigation, but as a practical matter this isn't really a concern in truck accident cases. Prosecutors aren't going to bring charges for destroying an ECM, when the underlying crime is speeding, failure to yield the right of way, or failure to keep a proper lookout. So while some may argue that police have the same power, in the real world, it's of little use.

ECM Data Is Just One Tool in the Attorney's Toolkit

I don't want to give the impression that ECM data is the be all, end all of truck accident investigations. It's far from foolproof, and doesn't make or break a case on its own. However, part of any responsible investigation is gathering as much evidence as possible and looking at the story it tells. If there's ECM data out there, it's part of the story, a part that's left out of over half of all police investigations.

As I mentioned before, I understand that people may be skeptical when a lawyer says that they can find things in an investigation that the police can't, but it's pretty clear that when it comes to recovering ECM data, attorneys have tools, experience, training, and incentives that the police just don't possess. And these are just one component of a professional truck accident investigation. There are easily a half a dozen other areas where the police lack the time and training to do what a truck accident injury attorney can.

To be clear, I'm not saying that the police do a bad job. With all they have on their plate, as well as the limited training they receive in crash investigation, they generally do an adequate job, in spite of having the deck stacked against them. Perhaps the best way to understand the distinction between your average police accident investigation and what attorneys do is to compare the difference between your average barber and a high-end hair stylist. In most circumstances, the barber is going to do a fine job. However, there are situations where calling in the stylist, with their superior training, experience, and tools, will still make a world of difference in the final result.

If we see that kind of difference in a profession as seemingly trivial as hair-styling, you can only imagine the gap in quality that exists between police and an attorney in a matter as important as commercial truck crash investigations. I realize that the average person doesn't know or care much about what makes a good investigation. Hopefully, they'll never be in a position to have to consider whether an investigation got things right. But for those who find themselves in such circumstances, they deserve the best. One quick and dirty way to determine whether or not they're getting the investigation they deserve is to check whether the police report includes any mention of engine control module data. If it does great; if not, a second set of eyes may be necessary.