Auto accident reconstruction is an issue that comes up in intox assault/manslaughter cases. I know enough about accident reconstruction to know that I need an expert’s assistance. Being in the DFW area I don’t see a lot of boating while intoxicated (BWI) cases, much less a boating accident reconstruction scenario. So let’s learn about this science together shall we?
Recently I had the chance to interview Phil Odom of H20 invesgitations. Phil spent years in DWI/BWI enforcement and is an expert in accident reconstruction. How exactly does one recreate an accident on the high seas? Let’s ask Phil.
I started in Law Enforcement in 1984 and I took most of the alcohol/drug related courses offered through the department. I completed the Drug Recognition Expert training (DRE) and later became a DRE Instructor. I was a DUI Enforcement Unit for a year and a half and received awards from MAAD. I was assigned to numerous “Attack Drunk Driver” Task Force operations on both land and water. I completed all of the training to be qualified as a Major Accident Investigation Team (MAIT) member. I was selected for the MAIT Team in the contract city I worked in and the department’s Regional MAIT Team. In 1996 I was promoted and transferred to the Colorado River Station. There was a lack of organization in boating collision investigation that was present in a MAINT investigation. I developed and supervised the Boating Accident Investigation Team (BAIT) for seven years, which initially got a lot of grins. I completed Boating Accident Reconstruction courses from the State of California, Underwriters Laboratories and The National Association of State Boating Law Administrators. I began teaching boating accident reconstruction for the California Department of Boating and Waterways (DBW). I took part in committees to rewrite DBW’s Accident Investigation Manual and Boating Under the Influence Manual. I was on the committee, which developed the curriculum for DBW’s Advanced Boating Reconstruction Investigation Course. I have been the operator of the striking vessel in over sixty staged boating collisions from speeds of 5 MPH to 45 MPH, which to my knowledge there are only three other people that have done this. My CV is contained on my website.
I’ve never seen a boating accident reconstruction report. Walk me through the process. How do you do this?
Boating accident reconstruction in the private sector starts with a contact from an attorney. I am sent all the reports, interviews, interrogatories, depositions photographs and any other information for review. In some cases, I can reconstruct the collision from this information alone. In more complex cases, the reconstruction starts with the evidence, which is the vessels involved in the collision, especially if there is question to the collision dynamics and fault. I will go to the location where the vessels are stored and inspect them. Damage analysis is crucial in any vessel accident reconstruction. Occupant kinetics and injuries are also a very important part of the reconstruction. Entry angles, damage and exit angles lead to course of the vessels and speed of the vessels. Most recreational vessels are constructed of fiberglass (there are no industry standards), which is resilient and can be deceptive when analyzing it. Scene examination is also important in considering environmental factors, vision obscurants, along with time-distance factors. I find initial interviews lacking in moist cases because lack of knowledge on the interviewers part and most parties are reinterviewed.
What are some of the difference between your auto accident reconstruction and car accident reconstruction?
Boating collisions are in far contrast to a vehicle collision. After a boating collision, the vessels do not stay at rest unless a vessel has struck the shore. Physical evidence can disappear at a very rapid rate along with witnesses; this is due in part to the length of response times of law enforcement. Another factor is, unlike collisions that occur on land, there is a third dimension added to a vessel vs. vessel collision, which is below the waters surface, vessels depress below the surface of the water when struck by another vessel, this creates a ramp for the striking vessel. A striking vessel can completely go over from stern (back) to bow (front) at speeds lower than 20 MPH. In a rear end vehicle collision the energy is absorbed by movement, front and rear end damage to the vehicles Most of the mathematical formulas used in auto collisions to determine speed can’t be applied in a boating collision. Crush calculations are impossible to determine the speed of a vessel using any type of mathematical formula. In contrast to automobile collisions, federal statues require actions on both operators of a vessel to take action to avoid a collision.
What should defense counsel look for in BWI cases?
In defense of a BUI case, there are many similar aspects as a DUI (vehicle) case. The first to look at is the probable cause for the stop, which can be based on an opinion, such as the age of a child not wearing a life vest, regulatory ordnance or a violation of a state and/or a federal statute. The US Coast Guard can board any vessel without probable cause, for safety inspection purposes. The main focus in a defense would be the field sobriety tests. In any field sobriety test conducted on the water, the operator performs the FST’s on a moving platform, the patrol vessel. If field sobriety tests are conducted on the water, it leaves a large area to question as to the validity of the test and the impairment of an operator. Just one example is a “modified” finger to nose test, which is commonly used, on the water. Questions would be what were the environmental conditions at the time? The operator is expected to touch the tip of his finger, to the tip of his nose and if it is missed by a quarter of an inch, it is considered by law enforcement as missed. This test conducted on a moving vessel could be impossible to “pass” if wind, any type of wave or other environmental conditions is present. If the FST’s are conducted on land other factors not associated with motor vehicles is equal librium issues from being on the water which can influence the FST’s. If the tests are conducted on land was it a detention or an arrest? Another area that is overlooked is the preliminary alcohol screen test (PAS). There are manufactures requirements that are rarely practiced in the marine environment, including calibration logs. There was a fatal collision in northern California and the instrument used by law enforcement was not calibrated for over a year. In BUI cases, from police reports I can review the case and prepare questions for council to ask in the proceedings.
What is the status of field sobriety testing in boating cases?
At the present time there are no field sobriety test validated for use on the water. In 2007 The National Association of State Boating Law Administrators (NASBLA) began year one of a three-year SFST Validation Study. The first year gathered BUI arrest reports from across the country and analyzed the data to develop a total of 13 possible candidates for standardized field sobriety testing. Testing on those preliminary tests has shown that six have higher promise than the others. Testing standards have been developed, and laboratory testing has begun and should be completed by the end of this year. The Executive Summary can be found on NASBLA’s website.
In representing someone of any alcohol related offence that occurred on the water or a vessel collision and the use of an expert is needed, look closely at the experts experience and qualifications in the exact field.