Upcoming public meeting in Rochester, New York, on Textalyzer technology

Up for discussion is technology that would administer a scan of a driver’s cell phone at the scene of an accident to see if it was in use just before the crash.

In July 2017, New York Governor Andrew Cuomo ordered the Governor's Traffic Safety Committee to study technology that would allow police to conduct field testing of drivers' mobile phones at accident scenes. The test would detect if the phones were in use just before collisions.

As part of the study, the last of three public listening sessions will be held on November 9, 2017, from 1 p.m. through 4 p.m. EST at the University of Rochester Bloch Alumni and Advancement Center, 300 East River Road in Rochester. The Committee will discuss the technology and interested parties may provide feedback.

Legislative developments

The technology, dubbed the "Textalyzer," is the cell phone equivalent of "Breathalyzer" testing already used for field tests for alcohol in drivers' breath. Legislation was unsuccessfully introduced in the New York legislature that would allow such roadside tests for phone use in the same way breath tests are already administered for alcohol detection based on implied consent.

The basic premise of existing implied consent law is that anyone who uses a state-issued driver's license implies as a condition of using it to drive that he or she impliedly consents to chemical testing for alcohol if police have reasonable suspicion.

The Textalyzer law would create similar implied consent to test drivers' phone as a condition of legal driving. If a driver refused to give his or her phone to police, his or her license would be temporarily suspended pending a hearing and potentially revoked, along with a hefty civil fine. The law also would allow police to get a judge's order to compel the surrender of the device in cases of serious injury or death from an accident.

Legal concerns

If a Textalyzer law passed, it would raise not only legal concerns for defendants similar to those involved with breath tests, but also new ones. For example, was the machine safely maintained and calibrated, and was the test correctly and legally administered?

Of course, cell phone seizure creates privacy concerns for the owner. To prevent law enforcement from overreaching, the new law states that the phone scan should not reach "content or origin of any communication or game conducted, or image or electronic data viewed ..."

Next steps

The Committee must create a report of its study findings. It will be interesting to see if the governor or elected officials take steps in response to the findings toward a Textalyzer law.

In the meantime, texting while driving as well as any other use of a hand-held device behind the wheel is illegal in New York, including talking, emailing, texting, using the Internet or playing games. (Emergency calls are an exception.) Penalties for violating this law can include points on the driver's record, a ticket, fine and surcharge. Penalties may be stiffer if the driver is a commercial driver, repeat offender, probationary driver or junior driver.

While every driver should follow the law and drive responsibly as a matter of public safety, law enforcement can overreach. Any driver in New York who receives a traffic ticket or faces a criminal charge related to driving should talk to an attorney as soon as possible to understand the legal options and ramifications and to create a legal strategy.

Penalties can be serious, even for tickets, and for many reasons it is important to protect both your driving record and your criminal record.

James M. Wagman, Attorney at Law, with offices in Catskill, represents drivers facing texting-while-driving charges and other driving matters in Upstate New York and in the Hudson Valley. He also represents out-of-state and Canadian drivers.