In an effort to combat distracted driving, the New York State Legislature is considering a new law that would allow law enforcement to “field test” a driver’s cell phone after an accident or collision involving damage to property, personal injury or death. Comparing the legislation to previous laws allowing a breathalyzer to detect drunk driving, the legislature would allow police use of a new in-development technology—a “textalyzer”—to detect whether the driver was using his or her phone in the moments before the accident. The proposed law is known as “Evan’s law” after a teen passenger killed in an accident where the driver of the car was suspected to have been texting. The proposed law has moved through the Senate Transportation Committee and is pending in the Senate Finance Committee.

The New York lawmakers sponsoring the bill contend that the proposal would help curb the increased prevalence of distracted driving and aid enforcement of the distracted driving public safety laws already on the books, such as New York’s ban on the use (except hands-free) of cell phones and other portable electronic devices while driving. The proposed “field test” defined in the bill involves “the use of an electronic scanning device” to determine the driver’s phone use prior to the accident. Claiming to “protect[] essential privacy rights,” the bill specifies the scanned information could not include any information about the content or origin of any communication detected on the phone or any image or similar electronic data viewed on the device.

Proponents of the bill assert that the new law would allow police officers to quickly ascertain on the scene whether a driver had illegally been texting as opposed to later obtaining a search warrant. Noting that “a driver’s license is a privilege,” the bill requires all drivers to submit to the “textalyzer” cell phone scan after an accident and makes consent to such a search an implied condition of driving on New York State roads. If the field test proved negative, officers could determine a warrant is unnecessary. If it were positive, the results of the field test constitute evidence of the cell phone offense. Officers could further obtain a warrant to discover the content of the cell phone and other information useful for a criminal or civil case.

Privacy and civil liberties interest groups have opposed the bill claiming that the proposed legislation raises serious privacy concerns. Opponents point out that because the “textalyzer” technology is still being developed, there is no way to confirm what information and content will be scanned during the field test. Rejecting the proponents’ reliance on implied consent, opponents claim that the law directly implicates a driver’s Fourth Amendment rights protecting the content of a person’s cell phone from warrantless searches.

Distracted driving is a growing problem, and New York’s proposed “textalyzer” is one potential solution that utilizes developing technology. Lawmakers in other states and cities, including New Jersey, Tennessee and Chicago, have also expressed interest in New York’s proposal. This legislative action shows a strong willingness to compromise driver privacy in support of public safety.