Colorado Criminal Mischief– Tesla Sentry Mode

Colorado lawyers who handle criminal mischief cases rarely see cases of a client keying a car, mostly because it is hard to catch someone doing it.   But a case from October in Broomfield County, north of Denver, garnered attention when a woman appeared, in video captured from the car itself, to key a Tesla Model 3 in a school parking lot.   The incident highlights how evolving technology is affecting law enforcement in general, and can be used to illustrate some of the ways a Denver criminal defense lawyer might approach a case involving criminal mischief.  To be clear, I do not represent the suspect in this case and have no knowledge of her or the incident outside of what was in the news. Discussion of possibilities about her case is just speculation for the purposes of developing general concepts of the law.  She is presumed innocent, and even if she is guilty of the offense, may very well be a good person who simply made a mistake on a bad day.  

The owner of the Tesla 3 reported that while he was watching a daughter’s soccer game, his Tesla 3 had been “keyed”, a simple but insidious way of scratching the paint and body of a car.  Though the damage is usually just cosmetic, keying a car is an act of vandalism that usually fits the definition of the Colorado crime called “criminal mischief.”  It is considered criminal mischief if you intentionally or knowingly damage the property of another.   Accidents, even reckless accidents, generally are not considered criminal mischief.  Common examples of criminal mischief include throwing a rock through a window, punching a hole in a wall, or breaking somebody’s phone.  Even graffiti or tagging might be considered criminal mischief, although there are more specific statutes like defacing property that are often used in those situations.   But anything that alters someone else’s property and lowers its value could constitute criminal mischief if done knowingly or intentionally.   Keying a car might not prevent the car from operating well, but it would lower the cars value by some amount and potentially require a costly repair and painting process to restore the car’s original appearance.  That is enough to support a criminal mischief prosecution.

Perhaps the most interesting thing about this Broomfield criminal mischief case is the technology that led to the suspect getting charged.  Tesla is aggressively incorporating technology into its cars at every price point. The Model 3, like Tesla’s more expensive models, comes with several cameras installed.  At least one is forward facing, but more are installed on the sides of the vehicle.  Their purposes may evolve over time with software updates, but they at least help to prevent collisions by sensing when objects are in what would otherwise be blind spots.  There are more safety features that involve the cameras, like automatic braking, and perhaps autonomous driving (autopilot), though advanced versions of the autopilot may be using ultrasound and radar as well as the cameras. 

Regardless, the suite of cameras provides nearly 360 degrees of video coverage that came in handy for this Tesla owner in Broomfield, as the cameras recorded the suspect keying the owner’s car.   Even if the suspect had known that the Tesla had cameras on it, the suspect might have been surprised to know that they were on, even when the car was parked.  That appears to be what Tesla calls Sentry Mode, and it worked, as the owner was able to go back and review the video.  After sharing the video with police and the media, the video was then shared across social media (itself quite a phenomenon for crowdsourcing the identity of suspects), and it was not long before the woman in the video was identified.   Rather than drag out the inevitable, she turned herself in.   Without the Tesla’s cameras, and Sentry Mode on, this act almost certainly would never have been caught.

The Sentry Mode that is probably active on Teslas in parking lots around the world just adds to the rapidly expanding scope of human events that are being recorded, for better and worse.  There have long been HALO cameras on utility and light poles at key intersections in Denver, there have long been surveillance cameras on businesses throughout Colorado, but recording and storage technology has advanced to the point that individual consumers now have a variety of cheap, compact methods to record their world, from aftermarket dash cameras to scalable home security systems with multiple cameras to aim at your porch, your front and back doors, etc.   It seems to be an irreversible trend, and criminal acts of the future will be increasingly likely to be caught on cameras of some kind or another.

So what happens to the suspect accused of criminal mischief? How will the justice system treat her? For starters, the woman in this case was charged with criminal mischief as a class 6 felony, based on the damage to the Tesla being between $1000 and $5000.   Of course, that’s going to be based on the cost of repair, so one potential thing her defense lawyer can do is try to help arrange for multiple estimates of the repair to see if someone can repair it for less than $1000, which would bump the starting charge down to a misdemeanor, and change the leverage inherent in the case.  Of course, that can require some finesse to accomplish, as neither the defendant or defense lawyer has control of the damaged property in a criminal mischief prosecution like this one.

But the character and context of the act will count for a lot in any criminal mischief case.    As with all crimes, the act will be perceived differently, and perhaps treated differently, if the act was premediated versus spontaneous.  It may matter if the car was targeted or if it was random.   Here, we at least appear to have the case of a random, likely spontaneous keying of a nice car.   Though not an aggravated crime, it just seems to unnecessary.  It doesn’t appear to be a crime of passion, there was no provocation evident, it just seems to have been a small but cruel act of vandalism, one that will take a decent amount of money to repair.   The strange thing is that we associate such acts with the ignorance and foolishness of kids acting out or pushing boundaries.  This suspect is not a child, and so it’s going to be harder to characterize this as some impulsive or thrill-seeking act of vandalism that the person could grow out of. 

The act seems so strange, and petty, that one wonders (though I make no claims to know this) whether the suspect was intoxicated at the time, or was dealing with any mental health issues.  It’s just hard to make sense of the act, otherwise.  Intoxication and mental health issues are unlikely (except for special circumstances) to provide a defense for an act of criminal mischief, but they can point the defense lawyer towards a resolution that might empathetically address the suspect’s (hypothetical) issues.   And the prosecutor and judge may be more empathetic to a person who acted out in a period of mental distress, for one example, than a person who acted out of malice and envy.

The lawyer for the defendant will need to understand not just the character of the incident itself, but also the character of the defendant herself.   The most important element of good character, from the perspective of the justice system, is the absence of any criminal history.    If she has any prior criminal cases, the stakes get higher very quickly.  A lot of stuff can be forgiven—once, maybe twice!    But defendants in the system for second and subsequent cases see the consequences rise quickly.    

One strange aspect of this case, though, is that the court or DA may (rightly or wrongly) suspect that even without any criminal history, that there is no way this is the suspect’s first time doing this.   That suspicion may come from the fact that it was an apparently random act, and of the type that is very unlikely to be caught.  If it were a targeted act of revenge against a recent ex, as opposed to random, it may be more plausible that this person only keys cars under very specific conditions.  But common sense suggests that if you catch somebody randomly targeting a car for criminal mischief, which is a crime that is hard to catch somebody doing, that there is a good chance they’ve done it before and simply not been caught before. Although such suspicion would not be formally be incorporated into the charge, the suspicion can affect the DA’s approach to the case and ultimately affect the consequences.

Assuming, again, that there is no special defense that this suspect may in fact have to the criminal mischief, a serious task for the suspect and her criminal defense lawyer is to demonstrate remorse and accountability.   That can be done a few ways, but it usually only works if she is sincere.   There are proactive ways that a person can try to make amends to a community (if not the alleged victim directly), such as community service.  There are classes and therapy one can take if one does have a true behavioral or mental health, or drug problem, that led to the behavior.   A person who is genuinely remorseful will usually leave that impression on everyone they deal with, from community service liaisons to family members to therapists, and those people may be able to write effective letters to the DA and court. Sometimes apology letters and prompt payment of restitution can help, though actions like that need to be facilitated by a defense lawyer to avoid violating a protection order that arises with the start of the case.  Even if there is no protection order, a poorly executed effort at communication with an alleged victim (by a lawyer or anybody else) can damage a person’s chances at a favorable resolution.  Perhaps most importantly, at any sentencing it will be important for the defendant to be very open and clear in how she takes responsibility for her actions.   Judges like to hear the defendant speak for himself or herself, so that they can get a feel for whether the person is sincerely remorseful and “gets it.”  A good lawyer will help a defendant understand the process and pitfalls of making a statement at sentencing, to make sure that the defendant gets full credit for all of the mitigating factors in the case.   

There are a lot of other considerations, of course, and no two cases are the same.   The outcome will even turn on several bits of luck, like whether the DA and judge assigned to the case are relatively reasonable or relatively harsh.  The surest path to a good outcome, as always, is found by working with an experienced criminal defense lawyer.