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Should MI use “textalyzer” — field testing of cellphones — to stop drivers from texting?

New York proposes field testing of suspected texting drivers’ cellphones after a car crash involving death or personal injury with new textalyzer technology, which promises to protect both individual privacy and public safety

Texting drivers

Here is my argument for why Michigan needs to allow field testing of suspected texting drivers’ cellphones, an idea that I supported when it was first introduced in the New York Legislature in 2016.

Texting drivers are 23 times more likely to be in a car crash.

Texting while driving has been shown to be as dangerous — or even more dangerous — than drunk driving.

Despite laws in Michigan outlawing texting and driving, fewer than 3,000 or so tickets have been issued each year for texting and driving, out of an estimated 2.5 million Michigan drivers estimated to text and drive. Imagine if only 3,000 people were arrested for drunk driving out of 2.5 million, to put that in perspective.

As an auto accident attorney, I see every day the carnage and loss of life that texting and other forms of distracted driving are causing on our roads. Texting and distracted driving have been responsible for a huge increase in car accidents and fatalities:

  • “Text messaging made the risk of crash or near-crash event 23.2 times as high as non-distracted driving,” according to a 2009 study from the Virginia Tech Transportation Institute.
  • “Studies have concluded that texting while driving impairs a driver to the level of 0.08 blood alcohol level.” (New York Senate Bill S2306, “Legislative intent” section, page 2)
  • Texting while driving was more dangerous than drunk driving, according to Car and Driver magazine.
  • Texting while driving “[i]s 6x more dangerous than driving while intoxicated,” according to Forbes magazine.
  • “[R]eports 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.” (New York Senate Bill S2306, “Legislative intent” section, page 1)

Something more must be done. Imagine if there were a way that we can reduce the number of car wrecks caused by texting drivers, while also protecting an individual’s right to privacy.

Fortunately, that something is now here: new technology now being referred to as the “textalyzer” — as in breathalyzer but for texting drivers instead of drunk drivers — that will allow police to do field testing of suspected texting drivers’ cellphones.

How does New York plan to use cellphone field testing to catch texting drivers?

On Jan. 12, 2017, Senate Bill S2306 was introduced in the New York Senate (where it was reported out favorably from the Transportation Committee on March 21, 2017).

It proposes to amend New York state’s vehicle and traffic law to allow “the field testing of mobile telephones and portable electronic devices after a motor vehicle accident or collision involving damage to real or personal property, personal injury or death.”

What is cellphone field testing — and how does it still protect privacy rights?

The New York Senate Bill S2306 explains that “field testing of mobile telephones and portable electronic” means using “an electronic scanning device” to determine if — and only if — a driver was “using a mobile telephone or a portable electronic device” “at or near the time” of “an accident or collision.”

The cellphone scanning will not reveal “the content or origin of any communication or game conducted, or image or electronic data viewed, on a mobile telephone or portable electronic device.”

What drivers may be subjected to field testing?

Suspected texting drivers who are “involved in an accident or collision involving damage to real or personal property, personal injury or death” will be subject to, and could be requested by the police to, undergo field testing.

Must texting-and-driving suspects comply with a police request for field testing?

Yes. If a suspected texting driver meets the requirements (i.e., was involved in a fatal, injury or property damage car crash and had a phone in his possession at the time of the crash), then he “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.”

The NY Senate Bill S2306 contains an “implied consent” provision, stating 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” at or near the time of “an accident or collision involving damage to real or personal property, personal injury or death.”

This implied consent is the rationale that allows police to administer a breathalyzer to suspected drunk drivers. It is an important part of my own rationale as an attorney for why I support the right of police to see if a cellphone is being used but not to view the contents of the cellphone itself. If texting is as dangerous as or more dangerous than drunk driving, as the science now shows, then the public-policy need behind this is identical.

If a driver refuses to “to surrender a mobile telephone or portable electronic device for field testing,” his or her driver’s license will be suspended, then revoked. The license will remain revoked for at least one year from the date of revocation. And, a first-time “refuser” faces a $500 “civil penalty.”

How can field testing help police enforce laws prohibiting texting while driving?

As S2306 observed:

“[L]aw enforcement has a difficult time enforcing these public safety laws [i.e., the laws against texting while driving], 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.” (New York Senate Bill S2306, “Legislative intent” section, page 2)

This observation is consistent with what’s happened in Michigan since 2010 when our texting ban was enacted.

The number of texting tickets being issued pales in comparison to the staggering number of drivers who are believed to be texting and driving:

“Despite estimates that approximately 2.5 million drivers have texted while driving, tickets for texting while driving have not reached 3,000 in any single year since the texting law went into effect in July 2010.”

This entry was tagged Tags: distracted driving, drunk driving, texting while driving
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