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Abstract: 

The criminal courts engage with offender monitoring technology each and every day in two principal ways. First, courts have the discretion to order a defendant or convicted offender to be monitored as a condition of bail or sentencing—for example, remote alcohol testing and ignition interlock for DUI/DWI offenses, GPS monitoring for domestic violence restraining orders or as a condition of release into the community for a probationer or parolee. These orders may be imposed at the discretion of a judge, or they may be enabled and in some cases mandated by statute. Generally, court-ordered monitoring is intended to prevent re-offending; the presence of a device that records an offender’s activities or whereabouts and reports back to a supervising agency is often sufficient to discourage an offender from driving drunk or getting too close to a person or place a court has ruled off limits. When an offender does re-offend while under electronic monitoring, the device records the data and record of the violation is sent to the supervising authority. Such violations usually trigger penalties, up to and including revocation of probation or parole, and incarceration. When this occurs, the courts engage with monitoring technology a second time—no longer as a tool of pre-trial release and sentencing, but as part of an evidentiary record. This article examines this second type of legal encounter—what happens when the transdermal alcohol measurements from a remote alcohol monitoring device is challenged by a defense attorney whose client faces a jail term?

Keywords: EM and GPS Monitoring Data; Evidentiary Standards; Court Admissibility; Burden of Proof

Affiliations:  1: SCRAM Systems.