DUI? There’s An App For That

This piece from the New York Times caught my eye the other day. It talks about a smartphone app that alerts users to the precise location of sobriety check points. Some senators have asked Apple, Google and the maker of BlackBerrys to remove the app. BlackBerry says it will, but it looks like Google and Apple don’t plan to. So, the lawyer in me wondered if that decision could set up Google and Apple for a liability claim by the victim of a drunk driver who used the app to avoid a check point. I asked some colleagues, and the consensus is probably not. In the first place, the location is public knowledge. As one colleague noted, “while the locations of checkpoints are not publicized, they are not hidden either. And, unless you do a Men In Black-style memory wipe of everyone who sees or passes through a checkpoint, the information is out there. It’s not classified or proprietary. Whether an individual wants to then share his knowledge of a checkpoint through phone, e-mail, blog, Facebook, or hiring a sky writer, there is nothing inherently illegal or nefarious about it.” Another noted that it’s not like the only purpose of the app is to facilitate drunk driving. As he says, “a lot of sober people regard DUI checkpoints as inconveniences. I once went through one (dead sober, I might add), and it took close to 30 minutes. So the app might have some utility that way.” But another colleague made what I consider the most interesting point, “if someone is drunk, drives, and then injures someone, then the app usage on their cell phone becomes very relevant evidence for punitive damages. Someone who knows they are drunk and uses technology to avoid detection is likely viewed as far more willful and malicious than a random dumb kid who makes a tragic mistake. The app/smartphone will likely reveal the usage, etc., and a plaintiff’s attorney can say that this jerk not only drove drunk, he knew he was driving drunk and scouted possible detection points to get to point B.” The last point puts the focus where it probably belongs – on the driver. Thanks to Zach Prendergast, Stacy Cole, Steve Goodin and Steve Smith for their thoughts. It’s nice to work with smart people.