Provides for the field testing for use of mobile telephones and portable electronic devices while driving after an accident or collision

Section two provides that this act shall be known as "Evan's law."

Section three amends section 215 of the vehicle and traffic law, regarding rules and regulations of the Department of Motor Vehicles, by adding to new subdivisions (d) and (e). Subdivision (d) requires the commissioner, jointly with the commissioner of criminal justice services, to promulgate rules and regulations necessary to implement provisions of § 1225-e, relating to field testing of mobile telephones and portable electronic devices. Subdivision (e) requires the commissioner to conduct a public education campaign relating 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 the state. The campaign shall include information pamphlets provided with each application for a learner's permit or driver's license, and each renewal thereof.

Section four amends section 503 of the vehicle and traffic law, regarding the period of validity of drivers' licenses, learners' permits and applications, to state that if a driver's license is revoked pursuant to the provisions of § 1225-e of the vehicle and traffic law such driver must pay a fee of $100 for the issuance of a driver's license.

Section five amends paragraph (a) of subdivision 2 of section 511 of the vehicle and traffic law, regarding operation while license or privilege is suspended or revoked; aggravated unlicensed operation, to add a new paragraph (v) which states that a person is guilty of aggravated unlicensed operation of a motor vehicle in the second degree when such person commits the offense of aggravated unlicensed operation of a motor vehicle in the third degree, and the suspension and revocation is based upon refusal to surrender a mobile telephone or portable electronic device for field testing pursuant to § 1225-e of this chapter.

Section six amends the vehicle and traffic law by adding a new section 1225-e regarding field testing of mobile telephones and portable electronic devices. Subdivision 1 defines the following terms:

- Paragraph (a) defines "field testing" to mean the use of an electronic scanning device to determine whether or not the operator of a motor vehicle was using a mobile telephone or a portable electronic device in violation of § 1225-c (use of mobile telephones) or § 1225- d (use of portable electronic devices) of this article. Provided that the use of an electronic scanning device will be limited to determining whether the operator of a motor vehicle was using a mobile telephone or portable electronic device at or near the time of the accident or collision which provides the grounds for such testing. No such electronic scan shall include the content or origin of any communication, game conducted, image or electronic data viewed on a mobile telephone or a portable electronic device.

- Paragraph (b) defines "mobile telephone" - Paragraph (c) defines "portable electronic device" - Paragraph (d) defines "using"

Subdivision 2 of section six establishes that every person operating a motor vehicle that has been involved in an accident or collision involving damage to real or personal property, personal injury or death, and who has in his or her possession at or near the time of such accident or collision a mobile telephone or personal electronic device must submit, at the request of the police officer, his or her mobile telephone or personal electronic device to the police officer solely for the purpose of field testing such device.

Paragraph (a) of subdivision 3 of section six establishes that every person who operates a motor vehicle in the state shall be deemed to have given consent to field testing of his or her mobile telephone and/or personal electronic device for the purpose of determining the use thereof while operating a motor vehicle. Furthermore, paragraph (b) subparagraph (1) establishes that refusal to submit a mobile telephone or personal electronic device to the field testing will result in the revocation of the driver's license or permit. The police officer will inform the driver that the person's license or permit to drive and any non-resident operating privilege shall be immediately suspended and subsequently revoked should the driver refuse to acquiesce to such field test. Should the driver refuse such field test, the test will not be conducted and a written report of such refusal will be immediately made by the police officer before whom the refusal was made. Subparagraph (2) establishes that the report of the police officer shall set forth the grounds to believe that the person was in use of his or her mobile telephone or personal electronic device at the time of the accident, that the person refused the field test and that no field test was performed. The report must be transmitted to the commissioner by the police officer within 48 hours of the refusal. Subparagraph (3) establishes that a person charged with a violation of § 1225-c or § 1225-d, upon the basis of such written report, will temporarily have his or her license or permit suspended by the court without notice pending the determination of a hearing. Subparagraph (4) states that the court or commissioner shall provide such person with a scheduled hearing date, a waiver form and such other information as may be required by the commissioner. Paragraph (c) establishes that 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. Should the department fail to provide for such hearing 15 days after the receipt of a report of refusal, the license or permit shall be reinstated pending a hearing. Paragraph (d) subparagraph (1) establishes that any license revoked under this subdivision shall not be restored for at least one year after such revocation, provided however that where a person has had a prior license revocation resulting from refusal to surrender to field testing within five years immediately preceding the date of such revocation, such license will not be restored for at least eighteen months after the revocation. Subparagraph (2) of paragraph (d) states that any person whose license has been revoked pursuant to the provisions of this section shall also be liable for a civil penalty of $500, except where the revocation is a second or subsequent revocation within a five year period the civil penalty shall be $750. Paragraph (f) states that evidence of a refusal to submit to field testing shall be admissible in any trial, proceeding or hearing but only upon a showing that the person was given sufficient warning, in clear and unequivocal language of the effect of such refusal, and the person persisted in the refusal. Paragraph (g) states that upon request the person who surrendered his or her mobile telephone and/or personal electronic device for field testing the results shall be made available to such person.

Subdivision 4 of section six states that no person may refuse a field test when a court order for such testing has been issued, and details the proper procedures for an application for a court order to compel surrender of a mobile telephone and/or portable electronic device solely for the purpose of field testing.

Section seven amends section 837 of the executive law, regarding the functions, powers and duties of the division of criminal justice services, to add a new subdivision 21 to empower the commissioner to promulgate rules and regulations necessary to implement the provisions of § 1225-e of the vehicle and traffic law.

Section eight establishes the effective date.

Justification

Evan Lieberman was a nineteen-year-old college freshman when he was tragically killed in a motor vehicle accident caused by a distracted driver. The cause of the accident however, was only discovered after Evan's family subpoenaed the driver's cell phone records, since police rarely examine mobile devices following an accident. In this case, the phone was not even removed from the car, leaving essential evidence sitting in a junk yard for weeks following his death. Evan's tragic story sheds much needed light on the inability of law enforcement to adequately enforce the 2001 ban placed on handheld mobile device use while driving.

Distracted driving is the leading cause of accidents among young drivers, and has led to a significant increase in overall accidents among drivers of all ages. The Centers for Disease Control and Prevention reported that every day in this country nine people are killed, and more than 1,153 are injured, in accidents involving a distracted driver. This roughly equates to one in five accidents per year caused by distracted driving, and the problem only continues to escalate. The cost associated with distracted driving is astronomical. The National Highway Traffic Safety Administration estimates that crashes caused by distracted driving cost the United States approximately $175 billion per year, this is roughly $148 per every American. With sixty-seven percent of drivers reportedly still using their cell phones despite knowledge of the risk to themselves and other drivers, it is imperative that we tackle this issue before it claims more innocent lives.

This bill provides law enforcement with a long overdue mechanism to evaluate cell phone use at the scene of an accident. It authorizes the use of available technology, which directly connects to the mobile device to determine whether it was in use at the time of the accident or immediately prior to its occurrence. This bill embodies the type of legislation called for by Justice Alito in the recent Supreme Court case, Riley v. California, where the court held that a warrant is required to search the contents of a cell phone incident to an arrest. In his concurring opinion, Justice Alito stated that Congress or state legislatures may "after assessing the legitimate needs of law enforcement and the privacy interests of cell phone owners, enact legislation that draws reasonable distinctions based on categories of information or perhaps other variables." This bill accomplishes just that. The equipment only has the capacity to determine whether the phone was in use at the time of the accident, and will not invade personal privacy by evaluating the personal content contained on the device.

Countless authorities have found that distracted driving is as dangerous, if not more so than driving while intoxicated. However, there is a great disparity in how these offenses are handled and punished under the law. It is for the safety and welfare of every New York resident to establish parity between these two offenses, and change the public perception around cell phone use while driving. Only by passing Evan's law can we hope to end the senseless loss of life that continues to plague our nation.

Legislative history

New bill

Fiscal implications

None noted.

Effective date

This act shall take effect immediately, except that sections three, four and five of this act shall take effect two years after this act shall have become a law.