Bill Text: NY A03201 | 2019-2020 | General Assembly | Introduced
Bill Title: 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.
Spectrum: Moderate Partisan Bill (Democrat 9-2)
Status: (Introduced - Dead) 2020-01-08 - referred to transportation [A03201 Detail]
Download: New_York-2019-A03201-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 3201 2019-2020 Regular Sessions IN ASSEMBLY January 28, 2019 ___________ Introduced by M. of A. ORTIZ, BUCHWALD, BYRNE, PICHARDO, QUART, D'URSO, HEVESI, WEPRIN, CRESPO -- Multi-Sponsored by -- M. of A. McDONOUGH, SIMON -- read once and referred to the Committee on Transportation 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- 16 ing that the problem has not only gotten worse, but is still greatly 17 misunderstood. 18 Furthermore, law enforcement has a difficult time enforcing these 19 public safety laws, especially after an accident where it is impossible 20 to discern whether the operator of a motor vehicle was in fact using his 21 or her cell phone immediately prior to or at the time of the collision. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD07531-01-9A. 3201 2 1 Empowering our law enforcement with technology, which is able to imme- 2 diately determine cell phone usage without an inquiry into the content, 3 will allow enforcement of these laws after an accident while still 4 protecting essential privacy rights. Therefore, the legislature finds 5 that while technology has created this grave danger, it also has the 6 capacity to aid law enforcement in tackling and eradicating distracted 7 driving caused by mobile telephones and personal electronic devices. 8 The legislature further finds that a driver's license is a privilege 9 granted by the state, and maintaining such privilege requires continued 10 compliance with established conditions enumerated in law. One such 11 condition is implied consent, an accepted mechanism in combating driving 12 while under the influence of alcohol. Studies have concluded that text- 13 ing while driving impairs a driver to the level of .08 blood alcohol 14 level. Therefore, it is in the state's interest to treat this impairment 15 with a similar methodology to that of drunk driving. The state's 16 invested interest in promoting public safety and preventing senseless 17 loss of life justifies the creation of Evan's law. 18 § 2. Short title. This act shall be known and may be cited as "Evan's 19 law". 20 § 3. Section 215 of the vehicle and traffic law is amended by adding 21 two new subdivisions (d) and (e) to read as follows: 22 (d) The commissioner shall, jointly with the commissioner of criminal 23 justice services, promulgate rules and regulations, and take any other 24 action necessary to implement the provisions of section twelve hundred 25 twenty-five-e of this chapter, relating to field testing of mobile tele- 26 phones and portable electronic devices. Such actions shall include the 27 testing and determination of the reliability and accuracy of electronic 28 scanning devices used for such field testing. The commissioner and 29 commissioner of criminal justice services shall approve electronic scan- 30 ning devices which are reliable and accurate for the purpose of conduct- 31 ing field testing. The rules and regulations promulgated by the commis- 32 sioner shall not require any police department to purchase electronic 33 scanning devices for field testing. Participation in field testing of 34 mobile telephones and portable electronic devices using electronic scan- 35 ning devices shall be optional for police departments. 36 (e) The commissioner shall conduct a public education campaign relat- 37 ing to the field testing of mobile telephones and portable electronic 38 devices, and the implied consent to such testing of any person operating 39 a motor vehicle in this state. Such campaign shall include information 40 pamphlets provided with each application for a learner's permit or driv- 41 er's license, and each renewal thereof. 42 § 4. Paragraph (h) of subdivision 2 of section 503 of the vehicle and 43 traffic law, as amended by section 1 of part PP of chapter 59 of the 44 laws of 2009, is amended to read as follows: 45 (h) An applicant whose driver's license has been revoked pursuant to 46 (i) section five hundred ten of this title, (ii) section eleven hundred 47 ninety-three of this chapter, [and] (iii) section eleven hundred nine- 48 ty-four of this chapter, and (iv) section twelve hundred twenty-five-e 49 of this chapter, shall, upon application for issuance of a driver's 50 license, pay to the commissioner a fee of one hundred dollars. When the 51 basis for the revocation is a finding of driving after having consumed 52 alcohol pursuant to the provisions of section eleven hundred 53 ninety-two-a of this chapter, the fee to be paid to the commissioner 54 shall be one hundred dollars. Such fee is not refundable and shall not 55 be returned to the applicant regardless of the action the commissioner 56 may take on such person's application for reinstatement of such drivingA. 3201 3 1 license. Such fee shall be in addition to any other fees presently 2 levied but shall not apply to an applicant whose driver's license was 3 revoked for failure to pass a reexamination or to an applicant who has 4 been issued a conditional or restricted use license under the provisions 5 of article twenty-one-A or thirty-one of this chapter. 6 § 5. Subparagraph (iv) of paragraph (a) of subdivision 2 of section 7 511 of the vehicle and traffic law, as amended by chapter 607 of the 8 laws of 1993, is amended and a new paragraph (v) is added to read as 9 follows: 10 (iv) such person has in effect three or more suspensions, imposed on 11 at least three separate dates, for failure to answer, appear or pay a 12 fine, pursuant to subdivision three of section two hundred twenty-six or 13 subdivision four-a of section five hundred ten of this chapter[.]; or 14 (v) the suspension or revocation is based upon refusal to surrender a 15 mobile telephone or portable electronic device for field testing pursu- 16 ant to section twelve hundred twenty-five-e of this chapter. 17 § 6. The vehicle and traffic law is amended by adding a new section 18 1225-e to read as follows: 19 § 1225-e. Field testing of mobile telephones and portable electronic 20 devices. 1. For the purposes of this section, the following terms shall 21 have the following meanings: 22 (a) "Field testing" shall mean the use of an electronic scanning 23 device, approved and utilized in accordance with rules jointly promul- 24 gated by the commissioner and the commissioner of criminal justice 25 services, to determine whether or not the operator of a motor vehicle 26 was using a mobile telephone or a portable electronic device in 27 violation of section twelve hundred twenty-five-c or twelve hundred 28 twenty-five-d of this article. Provided, that such use of an electronic 29 scanning device shall be limited to determining whether the operator of 30 a motor vehicle was using a mobile telephone or portable electronic 31 device in violation of either such section at or near the time of the 32 accident or collision which provides the grounds for such testing. 33 Furthermore, no such electronic scan shall include the content or origin 34 of any communication or game conducted, or image or electronic data 35 viewed, on a mobile telephone or portable electronic device. 36 (b) "Mobile telephone" shall mean a mobile telephone as defined in 37 paragraph (a) of subdivision one for section twelve hundred 38 twenty-five-c of this article. 39 (c) "Portable electronic device" shall mean a portable electronic 40 device as defined in paragraph (a) of subdivision two of section twelve 41 hundred twenty-five-d of this article. 42 (d) "Using" shall mean: 43 (1) for the purposes of mobile telephones, using as defined in para- 44 graph (c) of subdivision one of section twelve hundred twenty-five-c of 45 this article; and 46 (2) for the purposes of portable electronic devices, using as defined 47 in paragraph (b) of subdivision two of section twelve hundred twenty- 48 five-d of this article. 49 2. Every person operating a motor vehicle which has been involved in 50 an accident or collision involving damage to real or personal property, 51 personal injury or death, and who has in his possession at or near the 52 time of such accident or collision, a mobile telephone or personal elec- 53 tronic device, shall at the request of a police officer, surrender his 54 or her mobile telephone and/or portable electronic device to the police 55 officer solely for the purpose of field testing such mobile telephone 56 and/or portable electronic device. If such field testing determinesA. 3201 4 1 that the operator of the motor vehicle was using his or her mobile tele- 2 phone or portable electronic device in violation of section twelve 3 hundred twenty-five-c or twelve hundred twenty-five-d of this article, 4 the results of such testing shall constitute evidence of any such 5 violation. 6 3. (a) Any person who operates a motor vehicle in this state shall be 7 deemed to have given consent to field testing of his or her mobile tele- 8 phone and/or portable electronic device for the purpose of determining 9 the use thereof while operating a motor vehicle provided that such test- 10 ing is conducted by or at the direction of a police officer, after such 11 person has operated a motor vehicle involved in an accident or collision 12 involving damage to real or personal property, personal injury or death. 13 (b)(1) If a person operating a motor vehicle involved in an accident 14 or collision involving damage to real or personal property, personal 15 injury or death has in his or her possession a mobile telephone or port- 16 able electronic device, having thereafter been requested to surrender 17 such mobile telephone and/or portable electronic device for field test- 18 ing, and having been informed that the person's license or permit to 19 drive and any non-resident operating privilege shall be immediately 20 suspended and subsequently revoked, shall be revoked for refusal to 21 surrender his or her mobile telephone and/or portable electronic device 22 solely for the purpose of field testing, whether or not the person is 23 found guilty of a violation of section twelve hundred twenty-five-c or 24 twelve hundred twenty-five-d of this article, refuses to surrender his 25 or her mobile telephone or portable electronic device solely for the 26 purpose of field testing, unless a court order has been granted pursuant 27 to subdivision four of this section, field testing shall not be 28 conducted and a written report of such refusal shall be immediately made 29 by the police officer before whom such refusal was made. Such report may 30 be verified by having the report sworn to, or by affixing to such report 31 a form notice that false statements made therein are punishable as a 32 class A misdemeanor pursuant to section 210.45 of the penal law and such 33 form notice together with the subscription of the deponent shall consti- 34 tute a verification of the report. 35 (2) The report of the police officer shall set forth the grounds to 36 believe that the person operated a motor vehicle involved in an accident 37 or collision involving damage to real or personal property, personal 38 injury or death while in possession of a mobile telephone or portable 39 electronic device, that said person had refused to surrender his or her 40 mobile telephone or portable electronic device for field testing, and 41 that no field test was administered. The report shall be transmitted to 42 the commissioner by the police officer within forty-eight hours of the 43 refusal. 44 (3) For persons charged with a violation of section twelve hundred 45 twenty-five-c or twelve hundred twenty-five-d of this article, the 46 license or permit to drive and any non-resident operating privilege 47 shall, upon the basis of such written report, be temporarily suspended 48 by the court without notice pending the determination of a hearing as 49 provided in paragraph (c) of this subdivision. Copies of such report 50 must be transmitted by the court to the commissioner and such transmit- 51 tal may not be waived even with the consent of all the parties. Such 52 report shall be forwarded to the commissioner within forty-eight hours 53 of such filing of charges. 54 (4) The court or the commissioner shall provide such person with a 55 scheduled hearing date, a waiver form and such other information as may 56 be required by the commissioner. If a hearing, as provided in paragraphA. 3201 5 1 (c) of this subdivision, is waived by such person, the commissioner 2 shall immediately revoke the license, permit or non-resident operating 3 privilege, as of the date of receipt of such waiver in accordance with 4 paragraph (d) of this subdivision. 5 (c) Any person whose license or permit to drive or any non-resident 6 operating privilege has been suspended pursuant to paragraph (b) of this 7 subdivision is entitled to a hearing in accordance with a hearing sched- 8 ule to be promulgated by the commissioner. If the department fails to 9 provide for such hearing fifteen days after the receipt of a report of a 10 refusal, the license, permit to drive or non-resident operating privi- 11 lege of such person shall be reinstated pending a hearing pursuant to 12 this section. The hearing shall be limited to the following issues: (1) 13 did such person operate a motor vehicle involved in an accident or 14 collision involving damage to real or personal property, personal injury 15 or death; (2) did such person possess a mobile telephone or portable 16 electronic device at or near the time of such accident or collision; (3) 17 was such person given sufficient warning, in clear or unequivocal 18 language, prior to such refusal that such refusal to surrender his or 19 her mobile telephone and/or portable electronic device for filed testing 20 would result in the immediate suspension and subsequent revocation of 21 such person's license or operating privilege; and (4) did such person 22 refuse to surrender his or her mobile telephone and/or portable elec- 23 tronic device solely for the purpose of field testing. If, after such 24 hearing, the hearing officer, acting on behalf of the commissioner, 25 finds on any one of such issues in the negative, the hearing officer 26 shall immediately terminate any suspension arising from such refusal. 27 If, after such hearing, the hearing officer, acting on behalf of the 28 commissioner finds all of the issues in the affirmative, such officer 29 shall immediately revoke the license or permit to drive or any non-resi- 30 dent operating privilege in accordance with paragraph (d) of this subdi- 31 vision. A person who has had a license or permit to drive or non-resi- 32 dent operating privilege suspended or revoked pursuant to this 33 subdivision may appeal the findings of the hearing officer in accordance 34 with article three-A of this chapter. Any person may waive the right to 35 a hearing under this section. Failure by such person to appear for the 36 scheduled hearing shall constitute a waiver of such hearing; provided, 37 however, that such person may petition the commissioner for a new hear- 38 ing which shall be held as soon as practicable. 39 (d) (1) Any license which has been revoked pursuant to paragraph (c) 40 of this subdivision shall not be restored for at least one year after 41 such revocation, nor thereafter, except in the discretion of the commis- 42 sioner. However, no such license shall be restored for at least eighteen 43 months after such revocation, nor thereafter except in the discretion of 44 the commissioner, in any case where the person has had a prior revoca- 45 tion resulting from refusal to surrender his or her mobile telephone or 46 portable electronic device for field testing within five years imme- 47 diately preceding the date of such revocation. 48 (2) Except as otherwise provided, any person whose license, permit to 49 drive or any non-resident operating privilege is revoked pursuant to the 50 provisions of this section shall also be liable for a civil penalty in 51 the amount of five hundred dollars, except that if such revocation is a 52 second or subsequent revocation pursuant to this section issued within a 53 five year period, the civil penalty shall be in the amount of seven 54 hundred fifty dollars. No new driver's license or permit shall be 55 issued, or non-resident operating privilege restored to such person 56 unless such penalty has been paid. All penalties collected by theA. 3201 6 1 department pursuant to the provisions of this section shall be the prop- 2 erty of the state and shall be paid into the general fund of the state 3 treasury. 4 (e) The commissioner shall promulgate such rules and regulations as 5 may be necessary to effectuate the provisions of this section. 6 (f) Evidence of a refusal to surrender a mobile telephone or portable 7 electronic device for field testing shall be admissible in any trial, 8 proceeding or hearing based on a violation of the provisions of section 9 twelve hundred twenty-five-c or twelve hundred twenty-five-d of this 10 article but only upon a showing that the person was given sufficient 11 warning, in clear and unequivocal language, of the effect of such 12 refusal and that the person persisted in the refusal. 13 (g) Upon the request of the person who surrendered his or her mobile 14 telephone and/or portable electronic device for field testing the 15 results of such testing shall be made available to such person. 16 4. (a) Notwithstanding the provisions of subdivision three of this 17 section, no person who operates a motor vehicle in this state while 18 possessing a mobile telephone or portable electronic device may refuse 19 to surrender such mobile telephone or portable electronic device solely 20 for the purpose of field testing when a court order for such testing has 21 been issued in accordance with the provisions of this subdivision. 22 (b) Upon refusal by any person to surrender his or her mobile tele- 23 phone and/or portable electronic device for the purpose of field test- 24 ing, the testing shall not be conducted unless a police officer or a 25 district attorney, as defined in subdivision thirty-two of section 1.20 26 of the criminal procedure law, requests and obtains a court order to 27 compel a person to surrender his or her mobile telephone or portable 28 electronic device for field testing upon proof that such person was the 29 operator of a motor vehicle and in the course of such operation, he or 30 she caused serious physical injury, as defined in subdivision ten of 31 section 10.00 of the penal law, to or the death of another person. 32 (c)(1) An application for a court order to compel surrender of a 33 mobile telephone or portable electronic device for field testing, may be 34 made to any supreme court justice, county court judge or district court 35 judge in the judicial district in which the incident occurred, or if the 36 incident occurred in the city of New York before any supreme court 37 justice or judge of the criminal court of the city of New York. Such 38 application may be communicated by telephone, radio or other means of 39 electronic communication, or in person. 40 (2) The applicant must provide identification by name and title, and 41 must state the purpose of the communication. Upon being advised that an 42 application for a court order to compel surrender of a mobile telephone 43 and/or portable electronic device solely for the purpose of field test- 44 ing is being made, the court shall place under oath the applicant and 45 any other person providing information in support of the application as 46 provided in subparagraph three of this paragraph. After being sworn the 47 applicant must state that the person from whom the surrender of a mobile 48 telephone or portable electronic device was requested was the operator 49 of a motor vehicle and in the course of such operation, he or she caused 50 serious physical injury to or the death of another person, and such 51 person refused to surrender his or her mobile telephone or portable 52 electronic device for field testing. The applicant must make specific 53 allegations of fact to support such statement. Any person properly iden- 54 tified, may present sworn allegations of fact in support of the appli- 55 cant's statement.A. 3201 7 1 (3) Upon being advised that an oral application for a court order to 2 compel a person to surrender his or her mobile telephone or portable 3 electronic device for field testing is being made, a judge or justice 4 shall place under oath the applicant and any other person providing 5 information in support of the application. Such oath or oaths and all of 6 the remaining communication must be recorded, either by means of a voice 7 recording device or a stenographic record made, the judge must have the 8 record transcribed, certify to the accuracy of the transcription and 9 file the original record and transcription with the court within seven- 10 ty-two hours of the issuance of the court order. If the longhand notes 11 are taken, the judge shall subscribe a copy and file it with the court 12 within twenty-four hours of the issuance of the order. 13 (4) If the court is satisfied that the requirements for the issuance 14 of a court order pursuant to the provisions of paragraph (b) of this 15 subdivision have been met, it may grant the application and issue an 16 order requiring the person to surrender his or her mobile telephone or 17 portable electronic device for the purpose of field testing. When a 18 judge or justice determines to issue an order to compel surrender of a 19 mobile telephone or portable electronic device for the purpose of field 20 testing based on an oral application, the applicant therefor shall 21 prepare the order in accordance with the instructions of the judge or 22 justice. In all cases the order shall include the name of the issuing 23 judge or justice, the name of the applicant, and the date and time it 24 was issued. It must be signed by the judge or justice if issued in 25 person, or by the applicant if issued orally. 26 (5) Any false statement by an applicant or any other person in support 27 of an application for a court order shall subject such person to the 28 offenses for perjury set forth in article two hundred ten of the penal 29 law. 30 (6) The chief administrator of the courts shall establish a schedule 31 to provide that a sufficient number of judges or justices will be avail- 32 able in each judicial district to hear oral applications for court 33 orders as permitted by this section. 34 § 7. Section 837 of the executive law is amended by adding a new 35 subdivision 22 to read as follows: 36 22. Acting by and through the commissioner, to, jointly with the 37 commissioner of motor vehicles, promulgate rules and regulations, and 38 take any other action necessary to implement the provisions of section 39 twelve hundred twenty-five-e of the vehicle and traffic law, relating to 40 field testing of mobile telephones and portable electronic devices. Such 41 actions shall include the testing and determination of the reliability 42 and accuracy of electronic scanning devices used for such field testing. 43 The commissioner and commissioner of motor vehicles shall approve elec- 44 tronic scanning devices which are reliable and accurate for the purpose 45 of conducting field testing. 46 § 8. This act shall take effect immediately, except that sections 47 four, five and six of this act shall take effect two years after this 48 act shall have become a law.
