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"Textalyzer" Bill Introduced in New York Legislature

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Earlier this month, a bill was introduced in the New York State Assembly that would allow police officers to scan the cell phones of drivers in a car crash to determine whether they were texting. Called "Evan's Law" after the late son of Ben Lieberman, one of the bill's proponents, the bill is aimed at the growing epidemic of distracted driving.

The proposed law, Senate Bill S6325A, creates a doctrine of "implied consent" similar to that already used to compel drivers to submit to alcohol testing without a warrant, providing that "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...after such person has operated a motor vehicle involved in an accident or collision" resulting in injury, property damage, or death. The driver's license of any person refusing to surrender his phone for testing "shall be immediately suspended and subsequently revoked."

The "field testing" would be performed by attaching the phone to a device made by Cellebrite, the Israeli company that made news earlier this year as the company many believe helped the FBI hack the iPhone of San Bernardino terrorist Syed Farook. The device, popularly dubbed the "Textalyzer," can reportedly be plugged into a cell phone and determine when and how it was last used.

Despite assurances that the device does not read the phone's data and can only determine use, privacy advocates have raised concerns about the bill. "It really invites police to seize phones without justification or warrant," Donna Lieberman (no apparent relation to bill advocate Ben Lieberman), the executive director of the New York chapter of the ACLU, told the New York Times.

The bill faces an uphill battle in the New York legislature, and even if passed, it could face Constitutional hurdles. In the 2014 case Riley v. California, a unanimous U.S. Supreme Court held that the Fourth Amendment requires police to obtain a warrant before searching a cell phone, even after the phone's owner has been arrested. Also, while "implied consent" laws have not yet been struck down as unconstitutional, the Supreme Court could consider the issue soon in Gaede v. Illinois, on which the Court is currently deciding whether to grant certiorari.

Whether or not it passes, the Textalyzer law reflects a growing concern about the dangers of distracted driving. The Centers for Disease Control recently found that 18 percent of collisions involving injuries in 2013 involved cell phone distraction, claiming the lives of 3,000 on American roads. The numbers could be low, because texting and driving is inherently difficult to detect.

If you or someone you know has been injured by a texting driver, contact an attorney at Abraham, Watkins, Nichols, Sorrels, Agosto & Friend by calling 713-222-7211 or toll free at 1-800-870-9584.

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