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Law Office of Cohen & Jaffe, LLP

New York’s Proposed “Textalyzer”

Texting and driving? Watch out for the Textalyzer!

It all started with the death of 19-year-old Evan Lieberman in 2011, a young man who died in a tragic car crash in New York. At first, reports said that the driver fell asleep at the wheel. Later, after the family did its own investigation and issued subpoenas in a civil suit, it was discovered that cell phone use was a contributing factor in the crash.

Proposed Legislation

Under New York Senate Bill S6325A, police would be given the ability to field test cellular phones for evidence of usage. The law, commonly nicknamed “Evans Law,” would allow the use of an electronic testing device to check the phones of those involved in serious motor vehicle collisions to see if there was activity at the time of the collision.

Proponents of the Law

Led by co-sponsors, Democrat Tony Avella and Republican Michael Razenhofer, the law states that its purpose would be to “increase enforcement of existing prohibitions on the use of mobile telephones and/or personal electronic devices while driving through the creation of a field test that law enforcement may conduct at the scene of the accident.” See S6325A. According to those in support of the Bill, distracted driving costs the American people roughly $175 Billion each year. The goal is to allow the police to scan a device to see if there was activity at the time of the collision.

Criticisms of the Law

Not everyone is praising the proposed law. According to online reviews, there are a lot of unanswered questions that the public wants to know.

  • Privacy: Some argue that it could lead to unlawful intrusions into privacy. While the law, as drafted, would only scan for “activity” and not content, some fear that this could be a slippery slope that allows for a form of legalized wiretapping.
  • Not Preventative: Likewise, using a so-called “textalyzer” would not actually prevent crashes. Instead, it merely allows more efficient and accurate post-crash evidence collection.
  • Passenger Use: If the passenger is talking on the driver’s phone, how will law enforcement account for this?
  • Opens Door for Litigation: Given the uncertainty, it is quite possible this will merely open the door to a lot of contested litigation surrounding convictions, especially given the steep penalties.

Penalties for Refusing to Comply

A driver who refuses to provide the device to police or refuses to unlock the device, would be subject to harsh penalties, on par with DWI convictions. For instance, the new law would create an implied consent provision, meaning that just by driving in New York, the driver has consented to scans. By refusing, a person would be subjected to a $500 minimum fine and a one-year license revocation. Repeat offenders face up to an 18-month suspension and $750 fine.

Speak to a Long Island Personal Injury Attorney

Those injured by distracted drivers used to have a hard time proving negligence. Unless there is an independent witness who actually saw the negligent driver texting or talking on a device, it usually becomes a case of he said/she said. Furthermore, unless the person volunteers to turn over the phone, police often face big privacy hurdles to gain access to the device. If passed, Long Island personal injury attorneys may get an advantage because there will be a police report and public record of the person’s unlawful use of a device. This could be helpful in proving fault in auto accident cases. Attorneys at the Law Office of Cohen & Jaffe, LLP are committed to pursuing justice for every client, every day. If you are injured by a distracted driver in New York, call 24/7 to speak with someone about your case.

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