How often when you go out do you post pictures on Facebook? How many of your friends tag you in their photos? Have you ever casually referred to a party you went to earlier in the evening where you were drinking in a social media post?
Social media, including Facebook, Twitter, and Instagram, are often an integral part of our lives. Active Facebook users topped 1 billion in early 2013. Even though we most often associate social media use with younger adults, over 50% of all Facebook, Pinterest, LinkedIn, and Twitter users are over 35. When technology becomes so ubiquitous, we might not question the impact of it on our lives.
You might not give this kind of social sharing a second thought. But, if you’ve been arrested for DUI, what you post on social media matters. What used to be a way to share fun pictures and comments with your friends and acquaintances can become evidence in your DUI case. Sometimes the evidence works for you, but other times it could work against you.
Law enforcement officers and prosecutors are just as familiar with social media as you are. More and more, social media plays a role in the prosecution of cases. You may recall the conviction of two teenagers in a rape case in Steubenville, Ohio. In that case, prosecutors and law enforcement officers examined thousands of posts and reconstructed a timeline of events based on what the teens posted on social media, both during and after the rape.
If photos posted by you or your friends include locations and times, and it may be possible for prosecutors to place you in a certain place and certain time. Depending on the nature of the evidence, it might be used to bolster the case against you. If you get on Facebook to vent about the details of your DUI arrest or case, even if it is only to your “friends” on Facebook, prosecutors might be able to access that information.
It has been reported that law enforcement officers have created fictitious accounts to “friend” someone on Facebook and gain access to their posts. Although prosecutors cannot contact you directly if you are represented by a lawyer, they can find possible witnesses in your case through your social media posts and connections.
Your comments on social media can also impact your case in unexpected ways. In Kentucky, a woman who had hit another car and was arrested for DUI posted the following on Facebook, “My dumb*** got DUI and hit a car last week LOL.” LOL is an abbreviation for “laugh out loud.” In her case, the people whom she hit saw the post and brought it to the attention of the judge in the case. She ignored the judge’s order to shut down her Facebook account and spent 2 days in jail for contempt.
Is there a reasonable expectation of privacy on social media?
The Fourth amendment protects us against unlawful searches. What does this mean for posts made on social media? Can such evidence gathered by the police and prosecutors be used against you in court?
This area of the law is just developing. It hinges on whether or not there is a reasonable expectation of privacy by social media users. Another issue related to using social media posts as evidence in a trial also include whether it can be proved that the evidence is authentic and has not been altered in any way.
Let’s look at Facebook as an example. If you post possibly incriminating information on Facebook, did you post it to the public or only to your friends? If you have a large number of Facebook “friends” whom you don’t know, can the prosecution argue that you did not have a reasonable expectation that the information be private? If you accept every request to add a “friend” whether you know the person, the prosecution might argue that you did not have a reasonable expectation of privacy.
It is critically important to discuss all of these issues with us as your DUI attorneys. We need to know what information is out there on social media about you to ensure we provide the best defense in your case. Social media posts can also work in your favor. If there is information that can be used in your defense, we will examine the evidence and consider the best ways to bring it into your case.
What should you do if you have been arrested for DUI and use social media?
So you’ve been arrested and there are already pictures and posts on social media that could be used by the prosecution in your case. What should you do?
At a minimum, you need to set your privacy settings on your social media accounts to the
highest level of privacy possible. After your arrest, do not accept any friend requests from individuals you don’t know. You can untag yourself in any photos posted on Facebook by your friends.
You also need to stop posting to your accounts. In particular, it is unwise to post anything on the internet about your case. It is also important to avoid discussing your case over e-mail with anyone but us, as your attorneys. Once you have sent an e-mail, you have no control over what is done with it. Even if it can’t be used as evidence in a trial because you had an expectation of privacy, it is important to remember that you must protect yourself throughout the defense of your case.
If you are required to complete certain requirements as part of your case (for example, participating in an alcohol or drug rehab program, or abstaining from drinking alcohol) anything posted on social media could have a negative impact on your case. Ask your friends to not post any photos or comments about you as well.
Should you cancel your social media accounts and delete your posts after your DUI?
Although you may read blogs of attorneys advocating that you delete any embarrassing or potentially harmful photos or posts on Facebook, we urge you to discuss this with us as your attorneys before doing so.
There are so many aspects to your DUI defense and each case is unique. Finding an attorney who is experienced and fully understands all the circumstances of your case is critically important. Because the consequences of a DUI conviction can impact so many aspects of your life, we encourage you to talk with us about our expertise in DUI defense. Your life is too important NOT to hire the best attorneys. Call our office to set up your consultation today.