Despite New York State having one of the toughest sets of distracted driver laws in the country, they are about to get tougher. The Legislature is considering and likely will pass “Evan’s Law”, a law that will allow police officers to temporarily possess and field test your mobile phone or portable electronic device for purposes of determining whether it was illegally used.
As proposed, this law will require a driver to hand over his or her mobile phone or electronic device whenever he or she is involved in an accident or collision involving (1) damage to real or personal property, (2) personal injury, or (3) death. So even for a little “fender bender”, you may be asked to surrender your device. As you will read below, the consequences for failing to cooperate are very severe. Further, this law applies to anyone operating a motor vehicle in New York State including out-of-state drivers.
The rationale behind enacting and enforcing the surrender requirement is to reduce the extremely dangerous and widespread practice of distracted driving in the state. The preamble of the law recites that 67% of drivers admit to illegally using their devices, and that crashes are up 14% and fatalities are up 8% (following a 10-year trend of declining collisions and casualties). Accordingly to a recent National Highway Traffic Safety Administration study, in 2015, 3,477 people were killed in the United States due to distracted driving.
A field test involves the police officer plugging the motorist’s Galaxy, iPhone, etc. into a device that resembles a tablet called colloquially a “textalyzer”, and downloading your data from immediately before the accident or collision. The textalyzer instantly scans the device’s data to determine whether it keyboarded, swiped, accessed, and time-codes it. It can also determine whether and when you opened an app, took a photo, sent or received a text, or received or made a phone call. If the field test reveals that the cell phone or device was illegally used immediately before the incident, then the test results can be used against the motorist in a variety of ways including a criminal trial, a traffic ticket trial, and a civil action for personal injuries or property damages.
Even with a refusal, Evan’s Law allows the police to obtain a court order to access your device for more serious accidents or collisions (i.e., those involving serious physical injury or death).
Under Evan’s law, any motorist driving in the state will be presumed to have implicitly consented to field testing of his or her device under the above-mentioned circumstances. However, the language of the proposed laws states that the phone or device is to be surrendered “solely” for the purpose of field testing. To me, the use of the word “solely” suggests that the phone or device must be immediately returned after the field test. In order words, confiscation of the device is not permitted under the proposed law. Of course, the police could seek to confiscate it under other provisions of the law but, with non-serious accidents and collisions, I believe that the practice will be to return the device after the field test.
As proposed, the operative language of Evan’s Law sets forth, in part, that it covers a driver “who has in the possession at or near the time of [the] accident or collision” a mobile telephone phone or electronic device. An interesting question is what constitutes “possession”? Evan’s Law does not define it and I can envision instances where one could argue that it was not in his or her possession. For instance, is a device in your center console, glove compartment, backpack or briefcase in your “possession”? Another possession issue involves passengers. Is a device being held by a passenger in the driver’s possession? What prevents a passenger from holding the driver’s device to possibly insulate it from the “possession requirement” of the law? Also, how long back in time will be considered? If a text was sent, for instance, 5 minutes before the accident, would the driver still be issued a ticket for illegally using an electronic device? It will be interesting to see how these issues get resolved.
You may be wondering how this proposed law does not unconstitutionally invade privacy or curb first amendment rights. Proponents of the law respond that the technology is so advanced that it can make the above determination without inquiring into the actual content of your text, email, image, etc. This would seemingly defeat any such argument. However, civil libertarians argue that police officers could still look at and record information that it sees on a device and that this information could be used to spy on people. They argue that a court order should be the only way for police to obtain such information. They also warn that the law could be expanded (and thereby erode privacy) to allow textalyzers to be used at “cell phone checkpoints”, like DWI and seat belt checkpoints.
Critically, the consequences of refusal are extremely severe. If the police officer clearly and unequivocally explains the consequences and the motorist persists in his or her refusal to surrender, then the motorist’s license will be immediately suspended and, following a hearing, revoked for, at least, one year (at least, 18 months for a second refusal within 5 years). The period of the revocation is discretionary so the DMV can impose a longer period and, for those with bad records, could even refuse to restore privileges. Further, the suspension and subsequent revocation will be imposed even if the motorist is not convicted of violating a cell phone or electronic device law (Vehicle and Traffic Law Sections 1225-c and 1225-d). In order words, the revocation penalty is for the act of illegally refusing to surrender your device, not for illegally using your mobile phone or portable electronic device.
Beyond the revocation, the insurance effects of having such a suspension or revocation should not be ignored. Insurance companies will almost always raise a motorist’s rates for just one revocation. These hikes are often substantial. Further, there is a civil penalty of $500 ($750 for a second such refusal within 5 years) plus a $100 fee to seek reinstatement at the end of your revocation period. Of course, DMV will require that all fees be paid before you get your license or privilege back.
I predict that this law will be passed (as written below or similarly) and (despite a public awareness campaign that will be held) but that many motorists will still be unaware of it and may find themselves unexpectedly with a 1-year revocation. This is what happened when New York enacted its “move over” law a few years ago. However, at least, you now know and can respond appropriately.
Below is the full proposed law.
S T A T E O F N E W Y O R K ________________________________________________________________________ 2306 2017-2018 Regular Sessions I N S E N A T E January 12, 2017 ___________ Introduced by Sens. MURPHY, AVELLA, RANZENHOFER -- read twice and ordered printed, and when printed to be committed to the Committee on Transportation AN ACT to amend the vehicle and traffic law and the executive law, in relation to the field testing of mobile telephones and portable elec- tronic devices after a motor vehicle accident or collision involving damage to real or personal property, personal injury or death THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Legislative intent. The legislature hereby finds that the use of mobile telephones and/or personal electronic devices has dras- tically increased the prevalence of distracted driving. This destructive behavior endangers the lives of every driver and passenger traveling on New York state roadways. In 2001, this legislature enacted legislation prohibiting the use of mobile telephones while driving, and in 2009 updated the law to include all portable electronic devices. The execu- tive branch initiated a public campaign against cell phone use while driving, and has even established "text stops" along all major highways. While these efforts have brought much needed attention to the dangers of distracted driving, reports indicate that 67 percent of drivers admit to continued use of their cell phones while driving despite knowledge of the inherent danger to themselves and others on the road. A 10 year trend of declining collisions and casualties was reversed this year as crashes are up 14 percent, and fatalities increased 8 percent, suggest- ing that the problem has not only gotten worse, but is still greatly misunderstood. Furthermore, law enforcement has a difficult time enforcing these public safety laws, especially after an accident where it is impossible to discern whether the operator of a motor vehicle was in fact using his or her cell phone immediately prior to or at the time of the collision. EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD02344-01-7
S. 2306 2 Empowering our law enforcement with technology, which is able to imme- diately determine cell phone usage without an inquiry into the content, will allow enforcement of these laws after an accident while still protecting essential privacy rights. Therefore, the legislature finds that while technology has created this grave danger, it also has the capacity to aid law enforcement in tackling and eradicating distracted driving caused by mobile telephones and personal electronic devices. The legislature further finds that a driver's license is a privilege granted by the state, and maintaining such privilege requires continued compliance with established conditions enumerated in law. One such condition is implied consent, an accepted mechanism in combating driving while under the influence of alcohol. Studies have concluded that text- ing while driving impairs a driver to the level of .08 blood alcohol level. Therefore, it is in the state's interest to treat this impairment with a similar methodology to that of drunk driving. The state's invested interest in promoting public safety and preventing senseless loss of life justifies the creation of Evan's law. S 2. Short title. This act shall be known and may be cited as "Evan's law". S 3. Section 215 of the vehicle and traffic law is amended by adding two new subdivisions (d) and (e) to read as follows: (D) THE COMMISSIONER SHALL, JOINTLY WITH THE COMMISSIONER OF CRIMINAL JUSTICE SERVICES, PROMULGATE RULES AND REGULATIONS, AND TAKE ANY OTHER ACTION NECESSARY TO IMPLEMENT THE PROVISIONS OF SECTION TWELVE HUNDRED TWENTY-FIVE-E OF THIS CHAPTER, RELATING TO FIELD TESTING OF MOBILE TELE- PHONES AND PORTABLE ELECTRONIC DEVICES. SUCH ACTIONS SHALL INCLUDE THE TESTING AND DETERMINATION OF THE RELIABILITY AND ACCURACY OF ELECTRONIC SCANNING DEVICES USED FOR SUCH FIELD TESTING. THE COMMISSIONER AND COMMISSIONER OF CRIMINAL JUSTICE SERVICES SHALL APPROVE ELECTRONIC SCAN- NING DEVICES WHICH ARE RELIABLE AND ACCURATE FOR THE PURPOSE OF CONDUCT- ING FIELD TESTING. (E) THE COMMISSIONER SHALL CONDUCT A PUBLIC EDUCATION CAMPAIGN RELAT- ING TO THE FIELD TESTING OF MOBILE TELEPHONES AND PORTABLE ELECTRONIC DEVICES, AND THE IMPLIED CONSENT TO SUCH TESTING OF ANY PERSON OPERATING A MOTOR VEHICLE IN THIS STATE. SUCH CAMPAIGN SHALL INCLUDE INFORMATION PAMPHLETS PROVIDED WITH EACH APPLICATION FOR A LEARNER'S PERMIT OR DRIV- ER'S LICENSE, AND EACH RENEWAL THEREOF. S 4. Paragraph (h) of subdivision 2 of section 503 of the vehicle and traffic law, as amended by section 1 of part PP of chapter 59 of the laws of 2009, is amended to read as follows: (h) An applicant whose driver's license has been revoked pursuant to (i) section five hundred ten of this title, (ii) section eleven hundred ninety-three of this chapter, [and] (iii) section eleven hundred nine- ty-four of this chapter, AND (IV) SECTION TWELVE HUNDRED TWENTY-FIVE-E OF THIS CHAPTER, shall, upon application for issuance of a driver's license, pay to the commissioner a fee of one hundred dollars. When the basis for the revocation is a finding of driving after having consumed alcohol pursuant to the provisions of section eleven hundred ninety-two-a of this chapter, the fee to be paid to the commissioner shall be one hundred dollars. Such fee is not refundable and shall not be returned to the applicant regardless of the action the commissioner may take on such person's application for reinstatement of such driving license. Such fee shall be in addition to any other fees presently levied but shall not apply to an applicant whose driver's license was revoked for failure to pass a reexamination or to an applicant who has S. 2306 3 been issued a conditional or restricted use license under the provisions of article twenty-one-A or thirty-one of this chapter. S 5. Subparagraph (iv) of paragraph (a) of subdivision 2 of section 511 of the vehicle and traffic law, as amended by chapter 607 of the laws of 1993, is amended and a new paragraph (v) is added to read as follows: (iv) such person has in effect three or more suspensions, imposed on at least three separate dates, for failure to answer, appear or pay a fine, pursuant to subdivision three of section two hundred twenty-six or subdivision four-a of section five hundred ten of this chapter[.]; OR (V) THE SUSPENSION OR REVOCATION IS BASED UPON REFUSAL TO SURRENDER A MOBILE TELEPHONE OR PORTABLE ELECTRONIC DEVICE FOR FIELD TESTING PURSU- ANT TO SECTION TWELVE HUNDRED TWENTY-FIVE-E OF THIS CHAPTER. S 6. The vehicle and traffic law is amended by adding a new section 1225-e to read as follows: S 1225-E. FIELD TESTING OF MOBILE TELEPHONES AND PORTABLE ELECTRONIC DEVICES. 1. FOR THE PURPOSES OF THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS: (A) "FIELD TESTING" SHALL MEAN THE USE OF AN ELECTRONIC SCANNING DEVICE, APPROVED AND UTILIZED IN ACCORDANCE WITH RULES JOINTLY PROMUL- GATED BY THE COMMISSIONER AND THE COMMISSIONER OF CRIMINAL JUSTICE SERVICES, TO DETERMINE WHETHER OR NOT THE OPERATOR OF A MOTOR VEHICLE WAS USING A MOBILE TELEPHONE OR A PORTABLE ELECTRONIC DEVICE IN VIOLATION OF SECTION TWELVE HUNDRED TWENTY-FIVE-C OR TWELVE HUNDRED TWENTY-FIVE-D OF THIS ARTICLE. PROVIDED, THAT SUCH USE OF AN ELECTRONIC SCANNING DEVICE SHALL BE LIMITED TO DETERMINING WHETHER THE OPERATOR OF A MOTOR VEHICLE WAS USING A MOBILE TELEPHONE OR PORTABLE ELECTRONIC DEVICE IN VIOLATION OF EITHER SUCH SECTION AT OR NEAR THE TIME OF THE ACCIDENT OR COLLISION WHICH PROVIDES THE GROUNDS FOR SUCH TESTING. FURTHERMORE, NO SUCH ELECTRONIC SCAN SHALL INCLUDE THE CONTENT OR ORIGIN OF ANY COMMUNICATION OR GAME CONDUCTED, OR IMAGE OR ELECTRONIC DATA VIEWED, ON A MOBILE TELEPHONE OR PORTABLE ELECTRONIC DEVICE. (B) "MOBILE TELEPHONE" SHALL MEAN A MOBILE TELEPHONE AS DEFINED IN PARAGRAPH (A) OF SUBDIVISION ONE FOR SECTION TWELVE HUNDRED TWENTY-FIVE-C OF THIS ARTICLE. (C) "PORTABLE ELECTRONIC DEVICE" SHALL MEAN A PORTABLE ELECTRONIC DEVICE AS DEFINED IN PARAGRAPH (A) OF SUBDIVISION TWO OF SECTION TWELVE HUNDRED TWENTY-FIVE-D OF THIS ARTICLE. (D) "USING" SHALL MEAN: (1) FOR THE PURPOSES OF MOBILE TELEPHONES, USING AS DEFINED IN PARA- GRAPH (C) OF SUBDIVISION ONE OF SECTION TWELVE HUNDRED TWENTY-FIVE-C OF THIS ARTICLE; AND (2) FOR THE PURPOSES OF PORTABLE ELECTRONIC DEVICES, USING AS DEFINED IN PARAGRAPH (B) OF SUBDIVISION TWO OF SECTION TWELVE HUNDRED TWENTY-FIVE-D OF THIS ARTICLE. 2. EVERY PERSON OPERATING A MOTOR VEHICLE WHICH HAS BEEN INVOLVED IN AN ACCIDENT OR COLLISION INVOLVING DAMAGE TO REAL OR PERSONAL PROPERTY, PERSONAL INJURY OR DEATH, AND WHO HAS IN HIS POSSESSION AT OR NEAR THE TIME OF SUCH ACCIDENT OR COLLISION, A MOBILE TELEPHONE OR PERSONAL ELEC- TRONIC DEVICE, SHALL AT THE REQUEST OF A POLICE OFFICER, SURRENDER HIS OR HER MOBILE TELEPHONE AND/OR PORTABLE ELECTRONIC DEVICE TO THE POLICE OFFICER SOLELY FOR THE PURPOSE OF FIELD TESTING SUCH MOBILE TELEPHONE AND/OR PORTABLE ELECTRONIC DEVICE. IF SUCH FIELD TESTING DETERMINES THAT THE OPERATOR OF THE MOTOR VEHICLE WAS USING HIS OR HER MOBILE TELE- PHONE OR PORTABLE ELECTRONIC DEVICE IN VIOLATION OF SECTION TWELVE HUNDRED TWENTY-FIVE-C OR TWELVE HUNDRED TWENTY-FIVE-D OF THIS ARTICLE, S. 2306 4 THE RESULTS OF SUCH TESTING SHALL CONSTITUTE EVIDENCE OF ANY SUCH VIOLATION. 3. (A) ANY PERSON WHO OPERATES A MOTOR VEHICLE IN THIS STATE SHALL BE DEEMED TO HAVE GIVEN CONSENT TO FIELD TESTING OF HIS OR HER MOBILE TELE- PHONE AND/OR PORTABLE ELECTRONIC DEVICE FOR THE PURPOSE OF DETERMINING THE USE THEREOF WHILE OPERATING A MOTOR VEHICLE PROVIDED THAT SUCH TEST- ING IS CONDUCTED BY OR AT THE DIRECTION OF A POLICE OFFICER, AFTER SUCH PERSON HAS OPERATED A MOTOR VEHICLE INVOLVED IN AN ACCIDENT OR COLLISION INVOLVING DAMAGE TO REAL OR PERSONAL PROPERTY, PERSONAL INJURY OR DEATH. (B)(1) IF A PERSON OPERATING A MOTOR VEHICLE INVOLVED IN AN ACCIDENT OR COLLISION INVOLVING DAMAGE TO REAL OR PERSONAL PROPERTY, PERSONAL INJURY OR DEATH HAS IN HIS OR HER POSSESSION A MOBILE TELEPHONE OR PORT- ABLE ELECTRONIC DEVICE, HAVING THEREAFTER BEEN REQUESTED TO SURRENDER SUCH MOBILE TELEPHONE AND/OR PORTABLE ELECTRONIC DEVICE FOR FIELD TEST- ING, AND HAVING BEEN INFORMED THAT THE PERSON'S LICENSE OR PERMIT TO DRIVE AND ANY NON-RESIDENT OPERATING PRIVILEGE SHALL BE IMMEDIATELY SUSPENDED AND SUBSEQUENTLY REVOKED, SHALL BE REVOKED FOR REFUSAL TO SURRENDER HIS OR HER MOBILE TELEPHONE AND/OR PORTABLE ELECTRONIC DEVICE SOLELY FOR THE PURPOSE OF FIELD TESTING, WHETHER OR NOT THE PERSON IS FOUND GUILTY OF A VIOLATION OF SECTION TWELVE HUNDRED TWENTY-FIVE-C OR TWELVE HUNDRED TWENTY-FIVE-D OF THIS ARTICLE, REFUSES TO SURRENDER HIS OR HER MOBILE TELEPHONE OR PORTABLE ELECTRONIC DEVICE SOLELY FOR THE PURPOSE OF FIELD TESTING, UNLESS A COURT ORDER HAS BEEN GRANTED PURSUANT TO SUBDIVISION FOUR OF THIS SECTION, FIELD TESTING SHALL NOT BE CONDUCTED AND A WRITTEN REPORT OF SUCH REFUSAL SHALL BE IMMEDIATELY MADE BY THE POLICE OFFICER BEFORE WHOM SUCH REFUSAL WAS MADE. SUCH REPORT MAY BE VERIFIED BY HAVING THE REPORT SWORN TO, OR BY AFFIXING TO SUCH REPORT A FORM NOTICE THAT FALSE STATEMENTS MADE THEREIN ARE PUNISHABLE AS A CLASS A MISDEMEANOR PURSUANT TO SECTION 210.45 OF THE PENAL LAW AND SUCH FORM NOTICE TOGETHER WITH THE SUBSCRIPTION OF THE DEPONENT SHALL CONSTI- TUTE A VERIFICATION OF THE REPORT. (2) THE REPORT OF THE POLICE OFFICER SHALL SET FORTH THE GROUNDS TO BELIEVE THAT THE PERSON OPERATED A MOTOR VEHICLE INVOLVED IN AN ACCIDENT OR COLLISION INVOLVING DAMAGE TO REAL OR PERSONAL PROPERTY, PERSONAL INJURY OR DEATH WHILE IN POSSESSION OF A MOBILE TELEPHONE OR PORTABLE ELECTRONIC DEVICE, THAT SAID PERSON HAD REFUSED TO SURRENDER HIS OR HER MOBILE TELEPHONE OR PORTABLE ELECTRONIC DEVICE FOR FIELD TESTING, AND THAT NO FIELD TEST WAS ADMINISTERED. THE REPORT SHALL BE TRANSMITTED TO THE COMMISSIONER BY THE POLICE OFFICER WITHIN FORTY-EIGHT HOURS OF THE REFUSAL. (3) FOR PERSONS CHARGED WITH A VIOLATION OF SECTION TWELVE HUNDRED TWENTY-FIVE-C OR TWELVE HUNDRED TWENTY-FIVE-D OF THIS ARTICLE, THE LICENSE OR PERMIT TO DRIVE AND ANY NON-RESIDENT OPERATING PRIVILEGE SHALL, UPON THE BASIS OF SUCH WRITTEN REPORT, BE TEMPORARILY SUSPENDED BY THE COURT WITHOUT NOTICE PENDING THE DETERMINATION OF A HEARING AS PROVIDED IN PARAGRAPH (C) OF THIS SUBDIVISION. COPIES OF SUCH REPORT MUST BE TRANSMITTED BY THE COURT TO THE COMMISSIONER AND SUCH TRANSMIT- TAL MAY NOT BE WAIVED EVEN WITH THE CONSENT OF ALL THE PARTIES. SUCH REPORT SHALL BE FORWARDED TO THE COMMISSIONER WITHIN FORTY-EIGHT HOURS OF SUCH FILING OF CHARGES. (4) THE COURT OR THE COMMISSIONER SHALL PROVIDE SUCH PERSON WITH A SCHEDULED HEARING DATE, A WAIVER FORM AND SUCH OTHER INFORMATION AS MAY BE REQUIRED BY THE COMMISSIONER. IF A HEARING, AS PROVIDED IN PARAGRAPH (C) OF THIS SUBDIVISION, IS WAIVED BY SUCH PERSON, THE COMMISSIONER SHALL IMMEDIATELY REVOKE THE LICENSE, PERMIT OR NON-RESIDENT OPERATING S. 2306 5 PRIVILEGE, AS OF THE DATE OF RECEIPT OF SUCH WAIVER IN ACCORDANCE WITH PARAGRAPH (D) OF THIS SUBDIVISION. (C) ANY PERSON WHOSE LICENSE OR PERMIT TO DRIVE OR ANY NON-RESIDENT OPERATING PRIVILEGE HAS BEEN SUSPENDED PURSUANT TO PARAGRAPH (B) OF THIS SUBDIVISION IS ENTITLED TO A HEARING IN ACCORDANCE WITH A HEARING SCHED- ULE TO BE PROMULGATED BY THE COMMISSIONER. IF THE DEPARTMENT FAILS TO PROVIDE FOR SUCH HEARING FIFTEEN DAYS AFTER THE RECEIPT OF A REPORT OF A REFUSAL, THE LICENSE, PERMIT TO DRIVE OR NON-RESIDENT OPERATING PRIVI- LEGE OF SUCH PERSON SHALL BE REINSTATED PENDING A HEARING PURSUANT TO THIS SECTION. THE HEARING SHALL BE LIMITED TO THE FOLLOWING ISSUES: (1) DID SUCH PERSON OPERATE A MOTOR VEHICLE INVOLVED IN AN ACCIDENT OR COLLISION INVOLVING DAMAGE TO REAL OR PERSONAL PROPERTY, PERSONAL INJURY OR DEATH; (2) DID SUCH PERSON POSSESS A MOBILE TELEPHONE OR PORTABLE ELECTRONIC DEVICE AT OR NEAR THE TIME OF SUCH ACCIDENT OR COLLISION; (3) WAS SUCH PERSON GIVEN SUFFICIENT WARNING, IN CLEAR OR UNEQUIVOCAL LANGUAGE, PRIOR TO SUCH REFUSAL THAT SUCH REFUSAL TO SURRENDER HIS OR HER MOBILE TELEPHONE AND/OR PORTABLE ELECTRONIC DEVICE FOR FILED TESTING WOULD RESULT IN THE IMMEDIATE SUSPENSION AND SUBSEQUENT REVOCATION OF SUCH PERSON'S LICENSE OR OPERATING PRIVILEGE; AND (4) DID SUCH PERSON REFUSE TO SURRENDER HIS OR HER MOBILE TELEPHONE AND/OR PORTABLE ELEC- TRONIC DEVICE SOLELY FOR THE PURPOSE OF FIELD TESTING. IF, AFTER SUCH HEARING, THE HEARING OFFICER, ACTING ON BEHALF OF THE COMMISSIONER, FINDS ON ANY ONE OF SUCH ISSUES IN THE NEGATIVE, THE HEARING OFFICER SHALL IMMEDIATELY TERMINATE ANY SUSPENSION ARISING FROM SUCH REFUSAL. IF, AFTER SUCH HEARING, THE HEARING OFFICER, ACTING ON BEHALF OF THE COMMISSIONER FINDS ALL OF THE ISSUES IN THE AFFIRMATIVE, SUCH OFFICER SHALL IMMEDIATELY REVOKE THE LICENSE OR PERMIT TO DRIVE OR ANY NON-RESI- DENT OPERATING PRIVILEGE IN ACCORDANCE WITH PARAGRAPH (D) OF THIS SUBDI- VISION. A PERSON WHO HAS HAD A LICENSE OR PERMIT TO DRIVE OR NON-RESI- DENT OPERATING PRIVILEGE SUSPENDED OR REVOKED PURSUANT TO THIS SUBDIVISION MAY APPEAL THE FINDINGS OF THE HEARING OFFICER IN ACCORDANCE WITH ARTICLE THREE-A OF THIS CHAPTER. ANY PERSON MAY WAIVE THE RIGHT TO A HEARING UNDER THIS SECTION. FAILURE BY SUCH PERSON TO APPEAR FOR THE SCHEDULED HEARING SHALL CONSTITUTE A WAIVER OF SUCH HEARING; PROVIDED, HOWEVER, THAT SUCH PERSON MAY PETITION THE COMMISSIONER FOR A NEW HEAR- ING WHICH SHALL BE HELD AS SOON AS PRACTICABLE. (D) (1) ANY LICENSE WHICH HAS BEEN REVOKED PURSUANT TO PARAGRAPH (C) OF THIS SUBDIVISION SHALL NOT BE RESTORED FOR AT LEAST ONE YEAR AFTER SUCH REVOCATION, NOR THEREAFTER, EXCEPT IN THE DISCRETION OF THE COMMIS- SIONER. HOWEVER, NO SUCH LICENSE SHALL BE RESTORED FOR AT LEAST EIGHTEEN MONTHS AFTER SUCH REVOCATION, NOR THEREAFTER EXCEPT IN THE DISCRETION OF THE COMMISSIONER, IN ANY CASE WHERE THE PERSON HAS HAD A PRIOR REVOCA- TION RESULTING FROM REFUSAL TO SURRENDER HIS OR HER MOBILE TELEPHONE OR PORTABLE ELECTRONIC DEVICE FOR FIELD TESTING WITHIN FIVE YEARS IMME- DIATELY PRECEDING THE DATE OF SUCH REVOCATION. (2) EXCEPT AS OTHERWISE PROVIDED, ANY PERSON WHOSE LICENSE, PERMIT TO DRIVE OR ANY NON-RESIDENT OPERATING PRIVILEGE IS REVOKED PURSUANT TO THE PROVISIONS OF THIS SECTION SHALL ALSO BE LIABLE FOR A CIVIL PENALTY IN THE AMOUNT OF FIVE HUNDRED DOLLARS, EXCEPT THAT IF SUCH REVOCATION IS A SECOND OR SUBSEQUENT REVOCATION PURSUANT TO THIS SECTION ISSUED WITHIN A FIVE YEAR PERIOD, THE CIVIL PENALTY SHALL BE IN THE AMOUNT OF SEVEN HUNDRED FIFTY DOLLARS. NO NEW DRIVER'S LICENSE OR PERMIT SHALL BE ISSUED, OR NON-RESIDENT OPERATING PRIVILEGE RESTORED TO SUCH PERSON UNLESS SUCH PENALTY HAS BEEN PAID. ALL PENALTIES COLLECTED BY THE DEPARTMENT PURSUANT TO THE PROVISIONS OF THIS SECTION SHALL BE THE PROP- S. 2306 6 ERTY OF THE STATE AND SHALL BE PAID INTO THE GENERAL FUND OF THE STATE TREASURY. (E) THE COMMISSIONER SHALL PROMULGATE SUCH RULES AND REGULATIONS AS MAY BE NECESSARY TO EFFECTUATE THE PROVISIONS OF THIS SECTION. (F) EVIDENCE OF A REFUSAL TO SURRENDER A MOBILE TELEPHONE OR PORTABLE ELECTRONIC DEVICE FOR FIELD TESTING SHALL BE ADMISSIBLE IN ANY TRIAL, PROCEEDING OR HEARING BASED ON A VIOLATION OF THE PROVISIONS OF SECTION TWELVE HUNDRED TWENTY-FIVE-C OR TWELVE HUNDRED TWENTY-FIVE-D OF THIS ARTICLE BUT ONLY UPON A SHOWING THAT THE PERSON WAS GIVEN SUFFICIENT WARNING, IN CLEAR AND UNEQUIVOCAL LANGUAGE, OF THE EFFECT OF SUCH REFUSAL AND THAT THE PERSON PERSISTED IN THE REFUSAL. (G) UPON THE REQUEST OF THE PERSON WHO SURRENDERED HIS OR HER MOBILE TELEPHONE AND/OR PORTABLE ELECTRONIC DEVICE FOR FIELD TESTING THE RESULTS OF SUCH TESTING SHALL BE MADE AVAILABLE TO SUCH PERSON. 4. (A) NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION THREE OF THIS SECTION, NO PERSON WHO OPERATES A MOTOR VEHICLE IN THIS STATE WHILE POSSESSING A MOBILE TELEPHONE OR PORTABLE ELECTRONIC DEVICE MAY REFUSE TO SURRENDER SUCH MOBILE TELEPHONE OR PORTABLE ELECTRONIC DEVICE SOLELY FOR THE PURPOSE OF FIELD TESTING WHEN A COURT ORDER FOR SUCH TESTING HAS BEEN ISSUED IN ACCORDANCE WITH THE PROVISIONS OF THIS SUBDIVISION. (B) UPON REFUSAL BY ANY PERSON TO SURRENDER HIS OR HER MOBILE TELE- PHONE AND/OR PORTABLE ELECTRONIC DEVICE FOR THE PURPOSE OF FIELD TEST- ING, THE TESTING SHALL NOT BE CONDUCTED UNLESS A POLICE OFFICER OR A DISTRICT ATTORNEY, AS DEFINED IN SUBDIVISION THIRTY-TWO OF SECTION 1.20 OF THE CRIMINAL PROCEDURE LAW, REQUESTS AND OBTAINS A COURT ORDER TO COMPEL A PERSON TO SURRENDER HIS OR HER MOBILE TELEPHONE OR PORTABLE ELECTRONIC DEVICE FOR FIELD TESTING UPON PROOF THAT SUCH PERSON WAS THE OPERATOR OF A MOTOR VEHICLE AND IN THE COURSE OF SUCH OPERATION, HE OR SHE CAUSED SERIOUS PHYSICAL INJURY, AS DEFINED IN SUBDIVISION TEN OF SECTION 10.00 OF THE PENAL LAW, TO OR THE DEATH OF ANOTHER PERSON. (C)(1) AN APPLICATION FOR A COURT ORDER TO COMPEL SURRENDER OF A MOBILE TELEPHONE OR PORTABLE ELECTRONIC DEVICE FOR FIELD TESTING, MAY BE MADE TO ANY SUPREME COURT JUSTICE, COUNTY COURT JUDGE OR DISTRICT COURT JUDGE IN THE JUDICIAL DISTRICT IN WHICH THE INCIDENT OCCURRED, OR IF THE INCIDENT OCCURRED IN THE CITY OF NEW YORK BEFORE ANY SUPREME COURT JUSTICE OR JUDGE OF THE CRIMINAL COURT OF THE CITY OF NEW YORK. SUCH APPLICATION MAY BE COMMUNICATED BY TELEPHONE, RADIO OR OTHER MEANS OF ELECTRONIC COMMUNICATION, OR IN PERSON. (2) THE APPLICANT MUST PROVIDE IDENTIFICATION BY NAME AND TITLE, AND MUST STATE THE PURPOSE OF THE COMMUNICATION. UPON BEING ADVISED THAT AN APPLICATION FOR A COURT ORDER TO COMPEL SURRENDER OF A MOBILE TELEPHONE AND/OR PORTABLE ELECTRONIC DEVICE SOLELY FOR THE PURPOSE OF FIELD TEST- ING IS BEING MADE, THE COURT SHALL PLACE UNDER OATH THE APPLICANT AND ANY OTHER PERSON PROVIDING INFORMATION IN SUPPORT OF THE APPLICATION AS PROVIDED IN SUBPARAGRAPH THREE OF THIS PARAGRAPH. AFTER BEING SWORN THE APPLICANT MUST STATE THAT THE PERSON FROM WHOM THE SURRENDER OF A MOBILE TELEPHONE OR PORTABLE ELECTRONIC DEVICE WAS REQUESTED WAS THE OPERATOR OF A MOTOR VEHICLE AND IN THE COURSE OF SUCH OPERATION, HE OR SHE CAUSED SERIOUS PHYSICAL INJURY TO OR THE DEATH OF ANOTHER PERSON, AND SUCH PERSON REFUSED TO SURRENDER HIS OR HER MOBILE TELEPHONE OR PORTABLE ELECTRONIC DEVICE FOR FIELD TESTING. THE APPLICANT MUST MAKE SPECIFIC ALLEGATIONS OF FACT TO SUPPORT SUCH STATEMENT. ANY PERSON PROPERLY IDEN- TIFIED, MAY PRESENT SWORN ALLEGATIONS OF FACT IN SUPPORT OF THE APPLI- CANT'S STATEMENT. (3) UPON BEING ADVISED THAT AN ORAL APPLICATION FOR A COURT ORDER TO COMPEL A PERSON TO SURRENDER HIS OR HER MOBILE TELEPHONE OR PORTABLE S. 2306 7 ELECTRONIC DEVICE FOR FIELD TESTING IS BEING MADE, A JUDGE OR JUSTICE SHALL PLACE UNDER OATH THE APPLICANT AND ANY OTHER PERSON PROVIDING INFORMATION IN SUPPORT OF THE APPLICATION. SUCH OATH OR OATHS AND ALL OF THE REMAINING COMMUNICATION MUST BE RECORDED, EITHER BY MEANS OF A VOICE RECORDING DEVICE OR A STENOGRAPHIC RECORD MADE, THE JUDGE MUST HAVE THE RECORD TRANSCRIBED, CERTIFY TO THE ACCURACY OF THE TRANSCRIPTION AND FILE THE ORIGINAL RECORD AND TRANSCRIPTION WITH THE COURT WITHIN SEVEN- TY-TWO HOURS OF THE ISSUANCE OF THE COURT ORDER. IF THE LONGHAND NOTES ARE TAKEN, THE JUDGE SHALL SUBSCRIBE A COPY AND FILE IT WITH THE COURT WITHIN TWENTY-FOUR HOURS OF THE ISSUANCE OF THE ORDER. (4) IF THE COURT IS SATISFIED THAT THE REQUIREMENTS FOR THE ISSUANCE OF A COURT ORDER PURSUANT TO THE PROVISIONS OF PARAGRAPH (B) OF THIS SUBDIVISION HAVE BEEN MET, IT MAY GRANT THE APPLICATION AND ISSUE AN ORDER REQUIRING THE PERSON TO SURRENDER HIS OR HER MOBILE TELEPHONE OR PORTABLE ELECTRONIC DEVICE FOR THE PURPOSE OF FIELD TESTING. WHEN A JUDGE OR JUSTICE DETERMINES TO ISSUE AN ORDER TO COMPEL SURRENDER OF A MOBILE TELEPHONE OR PORTABLE ELECTRONIC DEVICE FOR THE PURPOSE OF FIELD TESTING BASED ON AN ORAL APPLICATION, THE APPLICANT THEREFOR SHALL PREPARE THE ORDER IN ACCORDANCE WITH THE INSTRUCTIONS OF THE JUDGE OR JUSTICE. IN ALL CASES THE ORDER SHALL INCLUDE THE NAME OF THE ISSUING JUDGE OR JUSTICE, THE NAME OF THE APPLICANT, AND THE DATE AND TIME IT WAS ISSUED. IT MUST BE SIGNED BY THE JUDGE OR JUSTICE IF ISSUED IN PERSON, OR BY THE APPLICANT IF ISSUED ORALLY. (5) ANY FALSE STATEMENT BY AN APPLICANT OR ANY OTHER PERSON IN SUPPORT OF AN APPLICATION FOR A COURT ORDER SHALL SUBJECT SUCH PERSON TO THE OFFENSES FOR PERJURY SET FORTH IN ARTICLE TWO HUNDRED TEN OF THE PENAL LAW. (6) THE CHIEF ADMINISTRATOR OF THE COURTS SHALL ESTABLISH A SCHEDULE TO PROVIDE THAT A SUFFICIENT NUMBER OF JUDGES OR JUSTICES WILL BE AVAIL- ABLE IN EACH JUDICIAL DISTRICT TO HEAR ORAL APPLICATIONS FOR COURT ORDERS AS PERMITTED BY THIS SECTION. S 7. Section 837 of the executive law is amended by adding a new subdivision 21 to read as follows: 21. ACTING BY AND THROUGH THE COMMISSIONER, TO, JOINTLY WITH THE COMMISSIONER OF MOTOR VEHICLES, PROMULGATE RULES AND REGULATIONS, AND TAKE ANY OTHER ACTION NECESSARY TO IMPLEMENT THE PROVISIONS OF SECTION TWELVE HUNDRED TWENTY-FIVE-E OF THE VEHICLE AND TRAFFIC LAW, RELATING TO FIELD TESTING OF MOBILE TELEPHONES AND PORTABLE ELECTRONIC DEVICES. SUCH ACTIONS SHALL INCLUDE THE TESTING AND DETERMINATION OF THE RELIABILITY AND ACCURACY OF ELECTRONIC SCANNING DEVICES USED FOR SUCH FIELD TESTING. THE COMMISSIONER AND COMMISSIONER OF MOTOR VEHICLES SHALL APPROVE ELEC- TRONIC SCANNING DEVICES WHICH ARE RELIABLE AND ACCURATE FOR THE PURPOSE OF CONDUCTING FIELD TESTING. S 8. This act shall take effect immediately, except that sections four, five and six of this act shall take effect two years after this act shall have become a law.
People are going to use their cell phones like it or not and creating these type of laws the only purpose is to raise revenue. The only way that they can prove to me that it’s actually not for the state coffers is to donate all fines to the heart association or lung association. Anywhere else the money goes is presumed to be for profit. The state of New York thinks that all its citizens are stupid and easily manipulated. Go after the phone manufacturers who can put up a real fight cause they have the money to stand their ground. Go to the source of the problem not after the problem happened. I’ll never stop using my device cause it’s for my job it is needed in course of working but I will agree that texting is wrong because people try finishing the sentence while texting. Just one more letter one more letter just one…….bang !!! Crap I had to put the period at the end of the sentence they keep texting till its done. I live in Pennsylvania and yes texting is illegal but answering a cellphone call is not.
You are right in looking for correct definition of ‘possession’. If I rode with my friend/relative etc. and checked messages on their phone while driving. Does that mean police have to revoke their phones too? Or lets say I have 2 phones and one of them was not looked at during incident, can I pretend and give them the one that was not used. Or give them another phone that was at home…So many questions arise, what if I simply forgot my phone that day, will they have to let them search the car to prove it? I can have a phone that was bought in supermarket with no name attached there will be no way to prove that phone belongs to me…Unless phone service is attached to your license/SSN there is no way to track it.
Thanks for your feedback and sharing your thoughts. We’ll see how this plays out soon enough.
How would using a Voice to Text feature, such as those that are included in many modern bluetooth car systems, be viewed? Without any physical interaction other than a button press on my steering wheel I can have Siri read my messages to me and can reply via speaking. Calls can be initiated, texts sent and received, and directions obtained all without any direct physical contact with my phone.
Great question. I assume that the textalyzer will be sophisticated enough to identify and differentiate various uses, so that only illegal uses would be used against a motorist. However, this is certainly something to watch.
Can the police compel me to unlock the phone with this law? Can I just hand over a locked phone over to the police?
Great question. I would interpret the law as requiring you to un-lock it. If you didn’t, I expect that traffic judges and DMV hearing officers will interpret that omission as a refuel.
So does that mean even if you have a ‘hands free’ system (that most cars do) and you’re involved in a ‘not at fault’ fender bender, you can still get revoked?
The answer is “yes”. If you refuse to hand over your device (even if you have a “hands-free” system) in such circumstances, than you can be revoked.
Does this apply to hands-free devices, too? If you make a call via your car’s hands free system, how would this program be able to differentiate between legal and illegal usage?
I suspect that the textalyzer is sophisticated enough to identify and differentiate among various activities (both legal and illegal).
They can prove that the device was used, but can they prove that the driver was the person who used the device? Can they prove that the car was in motion while the device was being operated? Seems to me I could argue there is no proof I didn’t pull over to use my device.
If the driver was alone, then it will be easy to prove that he or she used it. As I wrote, with a passenger in the car, not so much. The GPS in the device can confirm “motion” and I suspect that the textalyzer can “scrape” such data.