Textalyzer’s Coming Soon: Will Make Electronic Device Tickets Easier To Issue And Prove

13 Comments

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 collision (i.e., those involving serious physical injury or death).

Under Evan’s law, any motorist driving in the state will 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 check points”, like DWI and seat belt check points.

Critically, the consequences for 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 re-instatement 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.
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13 Comments. Leave new

  • 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.

    Reply
  • 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.

    Reply
    • Matthew Weiss
      October 18, 2017 9:58 pm

      Oleg,

      Thanks for your feedback and sharing your thoughts. We’ll see how this plays out soon enough.

      Matthew Weiss

      Reply
  • Anthony Pilowa
    October 18, 2017 2:05 pm

    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.

    Reply
    • Matthew Weiss
      October 18, 2017 9:59 pm

      Anthony Pilowa,

      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.

      Matthew Weiss

      Reply
  • Can the police compel me to unlock the phone with this law? Can I just hand over a locked phone over to the police?

    Reply
    • Ryan,

      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.

      Matthew Weiss

      Reply
  • 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?

    Reply
    • Bart,

      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.

      Matthew Weiss

      Reply
  • 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?

    Reply
    • Jonathan,

      I suspect that the textalyzer is sophisticated enough to identify and differentiate among various activities (both legal and illegal).

      Matthew Weiss

      Reply
  • 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.

    Mike

    Reply
    • Mike Carter,

      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.

      Matthew Weiss

      Reply

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