Amd §§215, 503 & 511, add §1225-e, V & T L; amd §837, Exec L
Provides for the field testing for use of mobile telephones and portable electronic devices while driving after an accident or collision; allows police departments the option to participate in such field testing.
STATE OF NEW YORK
________________________________________________________________________
2306--B
2017-2018 Regular Sessions
IN SENATE
January 12, 2017
___________
Introduced by Sens. MURPHY, BONACIC, BOYLE, GRIFFO, JACOBS, KAMINSKY,
KENNEDY, KLEIN, MARCHIONE, PHILLIPS, RANZENHOFER, ROBACH, SAVINO,
VALESKY -- read twice and ordered printed, and when printed to be
committed to the Committee on Transportation -- recommitted to the
Committee on Transportation in accordance with Senate Rule 6, sec. 8
-- committee discharged, bill amended, ordered reprinted as amended
and recommitted to said committee -- reported favorably from said
committee and committed to the Committee on Finance -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee
AN ACT to amend the vehicle and traffic law and the executive law, in
relation to the field testing of mobile telephones and portable elec-
tronic devices after a motor vehicle accident or collision involving
damage to real or personal property, personal injury or death
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Legislative intent. The legislature hereby finds that the
2 use of mobile telephones and/or personal electronic devices has dras-
3 tically increased the prevalence of distracted driving. This destructive
4 behavior endangers the lives of every driver and passenger traveling on
5 New York state roadways. In 2001, this legislature enacted legislation
6 prohibiting the use of mobile telephones while driving, and in 2009
7 updated the law to include all portable electronic devices. The execu-
8 tive branch initiated a public campaign against cell phone use while
9 driving, and has even established "text stops" along all major highways.
10 While these efforts have brought much needed attention to the dangers of
11 distracted driving, reports indicate that 67 percent of drivers admit to
12 continued use of their cell phones while driving despite knowledge of
13 the inherent danger to themselves and others on the road. A 10 year
14 trend of declining collisions and casualties was reversed this year as
15 crashes are up 14 percent, and fatalities increased 8 percent, suggest-
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD02344-04-8
S. 2306--B 2
1 ing that the problem has not only gotten worse, but is still greatly
2 misunderstood.
3 Furthermore, law enforcement has a difficult time enforcing these
4 public safety laws, especially after an accident where it is impossible
5 to discern whether the operator of a motor vehicle was in fact using his
6 or her cell phone immediately prior to or at the time of the collision.
7 Empowering our law enforcement with technology, which is able to imme-
8 diately determine cell phone usage without an inquiry into the content,
9 will allow enforcement of these laws after an accident while still
10 protecting essential privacy rights. Therefore, the legislature finds
11 that while technology has created this grave danger, it also has the
12 capacity to aid law enforcement in tackling and eradicating distracted
13 driving caused by mobile telephones and personal electronic devices.
14 The legislature further finds that a driver's license is a privilege
15 granted by the state, and maintaining such privilege requires continued
16 compliance with established conditions enumerated in law. One such
17 condition is implied consent, an accepted mechanism in combating driving
18 while under the influence of alcohol. Studies have concluded that text-
19 ing while driving impairs a driver to the level of .08 blood alcohol
20 level. Therefore, it is in the state's interest to treat this impairment
21 with a similar methodology to that of drunk driving. The state's
22 invested interest in promoting public safety and preventing senseless
23 loss of life justifies the creation of Evan's law.
24 § 2. Short title. This act shall be known and may be cited as "Evan's
25 law".
26 § 3. Section 215 of the vehicle and traffic law is amended by adding
27 two new subdivisions (d) and (e) to read as follows:
28 (d) The commissioner shall, jointly with the commissioner of criminal
29 justice services, promulgate rules and regulations, and take any other
30 action necessary to implement the provisions of section twelve hundred
31 twenty-five-e of this chapter, relating to field testing of mobile tele-
32 phones and portable electronic devices. Such actions shall include the
33 testing and determination of the reliability and accuracy of electronic
34 scanning devices used for such field testing. The commissioner and
35 commissioner of criminal justice services shall approve electronic scan-
36 ning devices which are reliable and accurate for the purpose of conduct-
37 ing field testing. The rules and regulations promulgated by the commis-
38 sioner shall not require any police department to purchase electronic
39 scanning devices for field testing. Participation in field testing of
40 mobile telephones and portable electronic devices using electronic scan-
41 ning devices shall be optional for police departments.
42 (e) The commissioner shall conduct a public education campaign relat-
43 ing to the field testing of mobile telephones and portable electronic
44 devices, and the implied consent to such testing of any person operating
45 a motor vehicle in this state. Such campaign shall include information
46 pamphlets provided with each application for a learner's permit or driv-
47 er's license, and each renewal thereof.
48 § 4. Paragraph (h) of subdivision 2 of section 503 of the vehicle and
49 traffic law, as amended by section 1 of part PP of chapter 59 of the
50 laws of 2009, is amended to read as follows:
51 (h) An applicant whose driver's license has been revoked pursuant to
52 (i) section five hundred ten of this title, (ii) section eleven hundred
53 ninety-three of this chapter, [and] (iii) section eleven hundred nine-
54 ty-four of this chapter, and (iv) section twelve hundred twenty-five-e
55 of this chapter, shall, upon application for issuance of a driver's
56 license, pay to the commissioner a fee of one hundred dollars. When the
S. 2306--B 3
1 basis for the revocation is a finding of driving after having consumed
2 alcohol pursuant to the provisions of section eleven hundred
3 ninety-two-a of this chapter, the fee to be paid to the commissioner
4 shall be one hundred dollars. Such fee is not refundable and shall not
5 be returned to the applicant regardless of the action the commissioner
6 may take on such person's application for reinstatement of such driving
7 license. Such fee shall be in addition to any other fees presently
8 levied but shall not apply to an applicant whose driver's license was
9 revoked for failure to pass a reexamination or to an applicant who has
10 been issued a conditional or restricted use license under the provisions
11 of article twenty-one-A or thirty-one of this chapter.
12 § 5. Subparagraph (iv) of paragraph (a) of subdivision 2 of section
13 511 of the vehicle and traffic law, as amended by chapter 607 of the
14 laws of 1993, is amended and a new paragraph (v) is added to read as
15 follows:
16 (iv) such person has in effect three or more suspensions, imposed on
17 at least three separate dates, for failure to answer, appear or pay a
18 fine, pursuant to subdivision three of section two hundred twenty-six or
19 subdivision four-a of section five hundred ten of this chapter[.]; or
20 (v) the suspension or revocation is based upon refusal to surrender a
21 mobile telephone or portable electronic device for field testing pursu-
22 ant to section twelve hundred twenty-five-e of this chapter.
23 § 6. The vehicle and traffic law is amended by adding a new section
24 1225-e to read as follows:
25 § 1225-e. Field testing of mobile telephones and portable electronic
26 devices. 1. For the purposes of this section, the following terms shall
27 have the following meanings:
28 (a) "Field testing" shall mean the use of an electronic scanning
29 device, approved and utilized in accordance with rules jointly promul-
30 gated by the commissioner and the commissioner of criminal justice
31 services, to determine whether or not the operator of a motor vehicle
32 was using a mobile telephone or a portable electronic device in
33 violation of section twelve hundred twenty-five-c or twelve hundred
34 twenty-five-d of this article. Provided, that such use of an electronic
35 scanning device shall be limited to determining whether the operator of
36 a motor vehicle was using a mobile telephone or portable electronic
37 device in violation of either such section at or near the time of the
38 accident or collision which provides the grounds for such testing.
39 Furthermore, no such electronic scan shall include the content or origin
40 of any communication or game conducted, or image or electronic data
41 viewed, on a mobile telephone or portable electronic device.
42 (b) "Mobile telephone" shall mean a mobile telephone as defined in
43 paragraph (a) of subdivision one for section twelve hundred
44 twenty-five-c of this article.
45 (c) "Portable electronic device" shall mean a portable electronic
46 device as defined in paragraph (a) of subdivision two of section twelve
47 hundred twenty-five-d of this article.
48 (d) "Using" shall mean:
49 (1) for the purposes of mobile telephones, using as defined in para-
50 graph (c) of subdivision one of section twelve hundred twenty-five-c of
51 this article; and
52 (2) for the purposes of portable electronic devices, using as defined
53 in paragraph (b) of subdivision two of section twelve hundred twenty-
54 five-d of this article.
55 2. Every person operating a motor vehicle which has been involved in
56 an accident or collision involving damage to real or personal property,
S. 2306--B 4
1 personal injury or death, and who has in his possession at or near the
2 time of such accident or collision, a mobile telephone or personal elec-
3 tronic device, shall at the request of a police officer, surrender his
4 or her mobile telephone and/or portable electronic device to the police
5 officer solely for the purpose of field testing such mobile telephone
6 and/or portable electronic device. If such field testing determines
7 that the operator of the motor vehicle was using his or her mobile tele-
8 phone or portable electronic device in violation of section twelve
9 hundred twenty-five-c or twelve hundred twenty-five-d of this article,
10 the results of such testing shall constitute evidence of any such
11 violation.
12 3. (a) Any person who operates a motor vehicle in this state shall be
13 deemed to have given consent to field testing of his or her mobile tele-
14 phone and/or portable electronic device for the purpose of determining
15 the use thereof while operating a motor vehicle provided that such test-
16 ing is conducted by or at the direction of a police officer, after such
17 person has operated a motor vehicle involved in an accident or collision
18 involving damage to real or personal property, personal injury or death.
19 (b)(1) If a person operating a motor vehicle involved in an accident
20 or collision involving damage to real or personal property, personal
21 injury or death has in his or her possession a mobile telephone or port-
22 able electronic device, having thereafter been requested to surrender
23 such mobile telephone and/or portable electronic device for field test-
24 ing, and having been informed that the person's license or permit to
25 drive and any non-resident operating privilege shall be immediately
26 suspended and subsequently revoked, shall be revoked for refusal to
27 surrender his or her mobile telephone and/or portable electronic device
28 solely for the purpose of field testing, whether or not the person is
29 found guilty of a violation of section twelve hundred twenty-five-c or
30 twelve hundred twenty-five-d of this article, refuses to surrender his
31 or her mobile telephone or portable electronic device solely for the
32 purpose of field testing, unless a court order has been granted pursuant
33 to subdivision four of this section, field testing shall not be
34 conducted and a written report of such refusal shall be immediately made
35 by the police officer before whom such refusal was made. Such report may
36 be verified by having the report sworn to, or by affixing to such report
37 a form notice that false statements made therein are punishable as a
38 class A misdemeanor pursuant to section 210.45 of the penal law and such
39 form notice together with the subscription of the deponent shall consti-
40 tute a verification of the report.
41 (2) The report of the police officer shall set forth the grounds to
42 believe that the person operated a motor vehicle involved in an accident
43 or collision involving damage to real or personal property, personal
44 injury or death while in possession of a mobile telephone or portable
45 electronic device, that said person had refused to surrender his or her
46 mobile telephone or portable electronic device for field testing, and
47 that no field test was administered. The report shall be transmitted to
48 the commissioner by the police officer within forty-eight hours of the
49 refusal.
50 (3) For persons charged with a violation of section twelve hundred
51 twenty-five-c or twelve hundred twenty-five-d of this article, the
52 license or permit to drive and any non-resident operating privilege
53 shall, upon the basis of such written report, be temporarily suspended
54 by the court without notice pending the determination of a hearing as
55 provided in paragraph (c) of this subdivision. Copies of such report
56 must be transmitted by the court to the commissioner and such transmit-
S. 2306--B 5
1 tal may not be waived even with the consent of all the parties. Such
2 report shall be forwarded to the commissioner within forty-eight hours
3 of such filing of charges.
4 (4) The court or the commissioner shall provide such person with a
5 scheduled hearing date, a waiver form and such other information as may
6 be required by the commissioner. If a hearing, as provided in paragraph
7 (c) of this subdivision, is waived by such person, the commissioner
8 shall immediately revoke the license, permit or non-resident operating
9 privilege, as of the date of receipt of such waiver in accordance with
10 paragraph (d) of this subdivision.
11 (c) Any person whose license or permit to drive or any non-resident
12 operating privilege has been suspended pursuant to paragraph (b) of this
13 subdivision is entitled to a hearing in accordance with a hearing sched-
14 ule to be promulgated by the commissioner. If the department fails to
15 provide for such hearing fifteen days after the receipt of a report of a
16 refusal, the license, permit to drive or non-resident operating privi-
17 lege of such person shall be reinstated pending a hearing pursuant to
18 this section. The hearing shall be limited to the following issues: (1)
19 did such person operate a motor vehicle involved in an accident or
20 collision involving damage to real or personal property, personal injury
21 or death; (2) did such person possess a mobile telephone or portable
22 electronic device at or near the time of such accident or collision; (3)
23 was such person given sufficient warning, in clear or unequivocal
24 language, prior to such refusal that such refusal to surrender his or
25 her mobile telephone and/or portable electronic device for filed testing
26 would result in the immediate suspension and subsequent revocation of
27 such person's license or operating privilege; and (4) did such person
28 refuse to surrender his or her mobile telephone and/or portable elec-
29 tronic device solely for the purpose of field testing. If, after such
30 hearing, the hearing officer, acting on behalf of the commissioner,
31 finds on any one of such issues in the negative, the hearing officer
32 shall immediately terminate any suspension arising from such refusal.
33 If, after such hearing, the hearing officer, acting on behalf of the
34 commissioner finds all of the issues in the affirmative, such officer
35 shall immediately revoke the license or permit to drive or any non-resi-
36 dent operating privilege in accordance with paragraph (d) of this subdi-
37 vision. A person who has had a license or permit to drive or non-resi-
38 dent operating privilege suspended or revoked pursuant to this
39 subdivision may appeal the findings of the hearing officer in accordance
40 with article three-A of this chapter. Any person may waive the right to
41 a hearing under this section. Failure by such person to appear for the
42 scheduled hearing shall constitute a waiver of such hearing; provided,
43 however, that such person may petition the commissioner for a new hear-
44 ing which shall be held as soon as practicable.
45 (d) (1) Any license which has been revoked pursuant to paragraph (c)
46 of this subdivision shall not be restored for at least one year after
47 such revocation, nor thereafter, except in the discretion of the commis-
48 sioner. However, no such license shall be restored for at least eighteen
49 months after such revocation, nor thereafter except in the discretion of
50 the commissioner, in any case where the person has had a prior revoca-
51 tion resulting from refusal to surrender his or her mobile telephone or
52 portable electronic device for field testing within five years imme-
53 diately preceding the date of such revocation.
54 (2) Except as otherwise provided, any person whose license, permit to
55 drive or any non-resident operating privilege is revoked pursuant to the
56 provisions of this section shall also be liable for a civil penalty in
S. 2306--B 6
1 the amount of five hundred dollars, except that if such revocation is a
2 second or subsequent revocation pursuant to this section issued within a
3 five year period, the civil penalty shall be in the amount of seven
4 hundred fifty dollars. No new driver's license or permit shall be
5 issued, or non-resident operating privilege restored to such person
6 unless such penalty has been paid. All penalties collected by the
7 department pursuant to the provisions of this section shall be the prop-
8 erty of the state and shall be paid into the general fund of the state
9 treasury.
10 (e) The commissioner shall promulgate such rules and regulations as
11 may be necessary to effectuate the provisions of this section.
12 (f) Evidence of a refusal to surrender a mobile telephone or portable
13 electronic device for field testing shall be admissible in any trial,
14 proceeding or hearing based on a violation of the provisions of section
15 twelve hundred twenty-five-c or twelve hundred twenty-five-d of this
16 article but only upon a showing that the person was given sufficient
17 warning, in clear and unequivocal language, of the effect of such
18 refusal and that the person persisted in the refusal.
19 (g) Upon the request of the person who surrendered his or her mobile
20 telephone and/or portable electronic device for field testing the
21 results of such testing shall be made available to such person.
22 4. (a) Notwithstanding the provisions of subdivision three of this
23 section, no person who operates a motor vehicle in this state while
24 possessing a mobile telephone or portable electronic device may refuse
25 to surrender such mobile telephone or portable electronic device solely
26 for the purpose of field testing when a court order for such testing has
27 been issued in accordance with the provisions of this subdivision.
28 (b) Upon refusal by any person to surrender his or her mobile tele-
29 phone and/or portable electronic device for the purpose of field test-
30 ing, the testing shall not be conducted unless a police officer or a
31 district attorney, as defined in subdivision thirty-two of section 1.20
32 of the criminal procedure law, requests and obtains a court order to
33 compel a person to surrender his or her mobile telephone or portable
34 electronic device for field testing upon proof that such person was the
35 operator of a motor vehicle and in the course of such operation, he or
36 she caused serious physical injury, as defined in subdivision ten of
37 section 10.00 of the penal law, to or the death of another person.
38 (c)(1) An application for a court order to compel surrender of a
39 mobile telephone or portable electronic device for field testing, may be
40 made to any supreme court justice, county court judge or district court
41 judge in the judicial district in which the incident occurred, or if the
42 incident occurred in the city of New York before any supreme court
43 justice or judge of the criminal court of the city of New York. Such
44 application may be communicated by telephone, radio or other means of
45 electronic communication, or in person.
46 (2) The applicant must provide identification by name and title, and
47 must state the purpose of the communication. Upon being advised that an
48 application for a court order to compel surrender of a mobile telephone
49 and/or portable electronic device solely for the purpose of field test-
50 ing is being made, the court shall place under oath the applicant and
51 any other person providing information in support of the application as
52 provided in subparagraph three of this paragraph. After being sworn the
53 applicant must state that the person from whom the surrender of a mobile
54 telephone or portable electronic device was requested was the operator
55 of a motor vehicle and in the course of such operation, he or she caused
56 serious physical injury to or the death of another person, and such
S. 2306--B 7
1 person refused to surrender his or her mobile telephone or portable
2 electronic device for field testing. The applicant must make specific
3 allegations of fact to support such statement. Any person properly iden-
4 tified, may present sworn allegations of fact in support of the appli-
5 cant's statement.
6 (3) Upon being advised that an oral application for a court order to
7 compel a person to surrender his or her mobile telephone or portable
8 electronic device for field testing is being made, a judge or justice
9 shall place under oath the applicant and any other person providing
10 information in support of the application. Such oath or oaths and all of
11 the remaining communication must be recorded, either by means of a voice
12 recording device or a stenographic record made, the judge must have the
13 record transcribed, certify to the accuracy of the transcription and
14 file the original record and transcription with the court within seven-
15 ty-two hours of the issuance of the court order. If the longhand notes
16 are taken, the judge shall subscribe a copy and file it with the court
17 within twenty-four hours of the issuance of the order.
18 (4) If the court is satisfied that the requirements for the issuance
19 of a court order pursuant to the provisions of paragraph (b) of this
20 subdivision have been met, it may grant the application and issue an
21 order requiring the person to surrender his or her mobile telephone or
22 portable electronic device for the purpose of field testing. When a
23 judge or justice determines to issue an order to compel surrender of a
24 mobile telephone or portable electronic device for the purpose of field
25 testing based on an oral application, the applicant therefor shall
26 prepare the order in accordance with the instructions of the judge or
27 justice. In all cases the order shall include the name of the issuing
28 judge or justice, the name of the applicant, and the date and time it
29 was issued. It must be signed by the judge or justice if issued in
30 person, or by the applicant if issued orally.
31 (5) Any false statement by an applicant or any other person in support
32 of an application for a court order shall subject such person to the
33 offenses for perjury set forth in article two hundred ten of the penal
34 law.
35 (6) The chief administrator of the courts shall establish a schedule
36 to provide that a sufficient number of judges or justices will be avail-
37 able in each judicial district to hear oral applications for court
38 orders as permitted by this section.
39 § 7. Section 837 of the executive law is amended by adding a new
40 subdivision 22 to read as follows:
41 22. Acting by and through the commissioner, to, jointly with the
42 commissioner of motor vehicles, promulgate rules and regulations, and
43 take any other action necessary to implement the provisions of section
44 twelve hundred twenty-five-e of the vehicle and traffic law, relating to
45 field testing of mobile telephones and portable electronic devices. Such
46 actions shall include the testing and determination of the reliability
47 and accuracy of electronic scanning devices used for such field testing.
48 The commissioner and commissioner of motor vehicles shall approve elec-
49 tronic scanning devices which are reliable and accurate for the purpose
50 of conducting field testing.
51 § 8. This act shall take effect immediately, except that sections
52 four, five and six of this act shall take effect two years after this
53 act shall have become a law.
