Test Phones After Crashes

Section 1. Legislative intent. The legislature hereby finds that the use of mobile telephones and/or personal electronic devices has drastically 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 executive 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-

EXPLANATION--Matter in italics (underscored) is new; matter in brackets

[ ] is old law to be omitted.

LBD02344-04-8

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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.

Empowering our law enforcement with technology, which is able to immediately 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 texting 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.

§ 2. Short title. This act shall be known and may be cited as "Evan's law".

§ 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 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 criminal justice services shall approve electronic scanning devices which are reliable and accurate for the purpose of conducting field testing. The rules and regulations promulgated by the commissioner shall not require any police department to purchase electronic scanning devices for field testing. Participation in field testing of mobile telephones and portable electronic devices using electronic scanning devices shall be optional for police departments.

(e) The commissioner shall 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 this state. Such campaign shall include information pamphlets provided with each application for a learner's permit or driver's license, and each renewal thereof.

§ 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 ninety-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

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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 been issued a conditional or restricted use license under the provisions of article twenty-one-A or thirty-one of this chapter.

§ 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 pursuant to section twelve hundred twenty-five-e of this chapter.

§ 6. The vehicle and traffic law is amended by adding a new section 1225-e to read as follows:

§ 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 promulgated 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 paragraph (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 twentyfive-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,

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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 electronic 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 telephone or portable electronic device in violation of section twelve hundred twenty-five-c or twelve hundred twenty-five-d of this article, 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 telephone and/or portable electronic device for the purpose of determining the use thereof while operating a motor vehicle provided that such testing 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 portable electronic device, having thereafter been requested to surrender such mobile telephone and/or portable electronic device for field testing, 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 constitute 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-

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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 privilege, as of the date of receipt of such waiver in accordance with paragraph (d) of this subdivision.