In any criminal case, criminal defense attorneys advise their clients not to talk about the matter to friends and family. This is particularly true in cases involving allegations of driving drunk or high on prescription or illegal drugs. There is absolutely no benefit to posting about the incident on social media – but there can be many downsides. As the defendant, anything an accused says can be used against them in court.
Law Enforcement and the Use of Social Media
In 2012, Lexis Nexis Risk Solutions did a survey on the use of social media by police to assist in investigations. The survey of 1200 police revealed some interesting statistics:
- Four out of five local and federal sworn personnel use social media to assist in investigations.
- Sixty-seven percent believe social media helps solve crimes more quickly.
- Eighty-seven percent of search warrants obtained using information gleaned from social media to establish probable cause were upheld when challenged on the basis of probable cause.
- Almost 50% of police report using social media at least once a week to investigate a crime.
- Of those who actively use social media in crime investigation, 83% reported planning to use social media more in the future for the purpose of investigating a crime.
- Of those who did not currently use social media for the purpose of investigating criminal activity, 74% reported an intention to start using it for that purpose.
This data is six years old; it can be assumed that the numbers -- if the study was conducted today -- may be a little higher. This makes avoiding social media even more prudent when it comes to documenting drinking activities. No one starts an evening of drinking thinking they will get a DUI that night. Instead, an error in judgment or a mistaken belief you are okay to drive can result in DUI charges. By avoiding social media posts, you reduce the amount of evidence the government has to prosecute a DUI case.
Social Media and Reports of Drunk Driving
Social media is a fact of life. From posting pictures of our dinners to tagging friends and family at gatherings, we have become accustomed to living our lives in public. However, social media is a terrible idea when someone has been drinking and driving.
The ways that social media posts might be used against someone are limited only by the prosecutor's imagination. Here are some of the things that have been discovered on social media, and later used against people in driving under the influence (DUI) cases:
- A woman documented her evening of drinking, including “checking in” at several bars downtown, and later, a video of herself singing karaoke in an apparently inebriated state.
- A man live-streamed himself driving while clearly under the influence. Someone who happened to witness the live stream called the police and reported it. This person then worked with the police to help locate the intoxicated driver, based on what was seen in the video.
- A man used social media in an attempt to locate a friend or family member who was awake in the early hours of the morning. He posted his situation, which included the fact that he had crashed his car after a night of drinking and needed a ride home.
- A woman posted a picture of herself driving with an open can of beer in the cupholder, in violation of open container laws.
While it may seem obvious, social media posts can be used against someone in a criminal or civil case, including DUI cases. Consequently, it is important to refrain from posting information about drinking and driving.
Social Media and Past Behavior
Depending on the facts and circumstances of the case, your past drinking behavior may also be used against you in court. This will not be true in every case, of course. However, it is possible that your past drinking behavior, as detailed on social media, may be introduced in a trial, a probation violation hearing, or another legal proceeding.
Privacy Settings versus Search Warrants
Some people think that because of their privacy settings, only friends can see their posts. First, “only friends” can be a very long list of people. Any one of them may share it or take a screenshot that can then be found by or provided to law enforcement. Second, thanks to the tagging feature, friends of people other than the poster may actually see the post. Finally, with the many changes made to social media sites, you cannot assume your privacy settings are up-to-date and working the way you think they should work.
Even if someone's privacy settings limit viewers, and even if none of those viewers would ever provide information to police, this does not guarantee privacy. A search warrant is a legal document that gives police permission to search your social media accounts. In any given case, where there is probable cause to believe evidence of a crime exists on a social media account, a judge can sign a search warrant allowing police access to the account(s). If the search warrant is legally obtained and properly executed, there is little a criminal defense lawyer can do to keep this information out of the DUI trial.
Some people think if they delete incriminating posts, they are home free. While deleting the posts may make the posts less visible, they do not make them invisible. Put another way, there is no way to completely destroy a post already posted. Don't believe social media outlets that claim the posts are deleted after a short period of time. A police officer with the right training and skill may be able to recover posts even in that format.