Bill Text: NY S05392 | 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: Partisan Bill (Republican 1-0)

Status: (Introduced) 2019-04-29 - REFERRED TO TRANSPORTATION [S05392 Detail]

Download: New_York-2019-S05392-Introduced.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                          5392
                               2019-2020 Regular Sessions
                    IN SENATE
                                     April 29, 2019
                                       ___________
        Introduced  by  Sen.  GRIFFO -- read twice and ordered printed, and when
          printed to be committed 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.
    22    Empowering our law enforcement with technology, which is able to imme-
    23  diately determine cell phone usage without an inquiry into the  content,
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD07531-01-9

        S. 5392                             2
     1  will  allow  enforcement  of  these  laws  after an accident while still
     2  protecting essential privacy rights. Therefore,  the  legislature  finds
     3  that  while  technology  has  created this grave danger, it also has the
     4  capacity  to  aid law enforcement in tackling and eradicating distracted
     5  driving caused by mobile telephones and personal electronic devices.
     6    The legislature further finds that a driver's license is  a  privilege
     7  granted  by the state, and maintaining such privilege requires continued
     8  compliance with established  conditions  enumerated  in  law.  One  such
     9  condition is implied consent, an accepted mechanism in combating driving
    10  while  under the influence of alcohol. Studies have concluded that text-
    11  ing while driving impairs a driver to the level  of  .08  blood  alcohol
    12  level. Therefore, it is in the state's interest to treat this impairment
    13  with  a  similar  methodology  to  that  of  drunk  driving. The state's
    14  invested interest in promoting public safety  and  preventing  senseless
    15  loss of life justifies the creation of Evan's law.
    16    §  2. Short title. This act shall be known and may be cited as "Evan's
    17  law".
    18    § 3. Section 215 of the vehicle and traffic law is amended  by  adding
    19  two new subdivisions (d) and (e) to read as follows:
    20    (d)  The commissioner shall, jointly with the commissioner of criminal
    21  justice services, promulgate rules and regulations, and take  any  other
    22  action  necessary  to implement the provisions of section twelve hundred
    23  twenty-five-e of this chapter, relating to field testing of mobile tele-
    24  phones and portable electronic devices. Such actions shall  include  the
    25  testing  and determination of the reliability and accuracy of electronic
    26  scanning devices used for  such  field  testing.  The  commissioner  and
    27  commissioner of criminal justice services shall approve electronic scan-
    28  ning devices which are reliable and accurate for the purpose of conduct-
    29  ing  field testing. The rules and regulations promulgated by the commis-
    30  sioner shall not require any police department  to  purchase  electronic
    31  scanning  devices  for  field testing. Participation in field testing of
    32  mobile telephones and portable electronic devices using electronic scan-
    33  ning devices shall be optional for police departments.
    34    (e) The commissioner shall conduct a public education campaign  relat-
    35  ing  to  the  field testing of mobile telephones and portable electronic
    36  devices, and the implied consent to such testing of any person operating
    37  a motor vehicle in this state. Such campaign shall  include  information
    38  pamphlets provided with each application for a learner's permit or driv-
    39  er's license, and each renewal thereof.
    40    §  4. Paragraph (h) of subdivision 2 of section 503 of the vehicle and
    41  traffic law, as amended by section 1 of part PP of  chapter  59  of  the
    42  laws of 2009, is amended to read as follows:
    43    (h)  An  applicant whose driver's license has been revoked pursuant to
    44  (i) section five hundred ten of this title, (ii) section eleven  hundred
    45  ninety-three  of  this chapter, [and] (iii) section eleven hundred nine-
    46  ty-four of this chapter, and (iv) section twelve  hundred  twenty-five-e
    47  of  this  chapter,  shall,  upon  application for issuance of a driver's
    48  license, pay to the commissioner a fee of one hundred dollars. When  the
    49  basis  for  the revocation is a finding of driving after having consumed
    50  alcohol  pursuant  to  the  provisions   of   section   eleven   hundred
    51  ninety-two-a  of  this  chapter,  the fee to be paid to the commissioner
    52  shall be one hundred dollars. Such fee is not refundable and  shall  not
    53  be  returned  to the applicant regardless of the action the commissioner
    54  may take on such person's application for reinstatement of such  driving
    55  license.  Such  fee  shall  be  in  addition to any other fees presently
    56  levied but shall not apply to an applicant whose  driver's  license  was

        S. 5392                             3
     1  revoked  for  failure to pass a reexamination or to an applicant who has
     2  been issued a conditional or restricted use license under the provisions
     3  of article twenty-one-A or thirty-one of this chapter.
     4    §  5.  Subparagraph  (iv) of paragraph (a) of subdivision 2 of section
     5  511 of the vehicle and traffic law, as amended by  chapter  607  of  the
     6  laws  of  1993,  is  amended and a new paragraph (v) is added to read as
     7  follows:
     8    (iv) such person has in effect three or more suspensions,  imposed  on
     9  at  least  three  separate dates, for failure to answer, appear or pay a
    10  fine, pursuant to subdivision three of section two hundred twenty-six or
    11  subdivision four-a of section five hundred ten of this chapter[.]; or
    12    (v) the suspension or revocation is based upon refusal to surrender  a
    13  mobile  telephone or portable electronic device for field testing pursu-
    14  ant to section twelve hundred twenty-five-e of this chapter.
    15    § 6. The vehicle and traffic law is amended by adding  a  new  section
    16  1225-e to read as follows:
    17    §  1225-e.  Field testing of mobile telephones and portable electronic
    18  devices. 1. For the purposes of this section, the following terms  shall
    19  have the following meanings:
    20    (a)  "Field  testing"  shall  mean  the  use of an electronic scanning
    21  device, approved and utilized in accordance with rules  jointly  promul-
    22  gated  by  the  commissioner  and  the  commissioner of criminal justice
    23  services, to determine whether or not the operator of  a  motor  vehicle
    24  was  using  a  mobile  telephone  or  a  portable  electronic  device in
    25  violation of section twelve  hundred  twenty-five-c  or  twelve  hundred
    26  twenty-five-d  of this article. Provided, that such use of an electronic
    27  scanning device shall be limited to determining whether the operator  of
    28  a  motor  vehicle  was  using  a mobile telephone or portable electronic
    29  device in violation of either such section at or near the  time  of  the
    30  accident  or  collision  which  provides  the  grounds for such testing.
    31  Furthermore, no such electronic scan shall include the content or origin
    32  of any communication or game conducted,  or  image  or  electronic  data
    33  viewed, on a mobile telephone or portable electronic device.
    34    (b)  "Mobile  telephone"  shall  mean a mobile telephone as defined in
    35  paragraph  (a)  of  subdivision   one   for   section   twelve   hundred
    36  twenty-five-c of this article.
    37    (c)  "Portable  electronic  device"  shall  mean a portable electronic
    38  device as defined in paragraph (a) of subdivision two of section  twelve
    39  hundred twenty-five-d of this article.
    40    (d) "Using" shall mean:
    41    (1)  for  the purposes of mobile telephones, using as defined in para-
    42  graph (c) of subdivision one of section twelve hundred twenty-five-c  of
    43  this article; and
    44    (2)  for the purposes of portable electronic devices, using as defined
    45  in paragraph (b) of subdivision two of section  twelve  hundred  twenty-
    46  five-d of this article.
    47    2.  Every  person operating a motor vehicle which has been involved in
    48  an accident or collision involving damage to real or personal  property,
    49  personal  injury  or death, and who has in his possession at or near the
    50  time of such accident or collision, a mobile telephone or personal elec-
    51  tronic device, shall at the request of a police officer,  surrender  his
    52  or  her mobile telephone and/or portable electronic device to the police
    53  officer solely for the purpose of field testing  such  mobile  telephone
    54  and/or  portable  electronic  device.   If such field testing determines
    55  that the operator of the motor vehicle was using his or her mobile tele-
    56  phone or portable electronic  device  in  violation  of  section  twelve

        S. 5392                             4
     1  hundred  twenty-five-c  or twelve hundred twenty-five-d of this article,
     2  the results of such  testing  shall  constitute  evidence  of  any  such
     3  violation.
     4    3.  (a) Any person who operates a motor vehicle in this state shall be
     5  deemed to have given consent to field testing of his or her mobile tele-
     6  phone and/or portable electronic device for the purpose  of  determining
     7  the use thereof while operating a motor vehicle provided that such test-
     8  ing  is conducted by or at the direction of a police officer, after such
     9  person has operated a motor vehicle involved in an accident or collision
    10  involving damage to real or personal property, personal injury or death.
    11    (b)(1) If a person operating a motor vehicle involved in  an  accident
    12  or  collision  involving  damage  to real or personal property, personal
    13  injury or death has in his or her possession a mobile telephone or port-
    14  able electronic device, having thereafter been  requested  to  surrender
    15  such  mobile telephone and/or portable electronic device for field test-
    16  ing, and having been informed that the person's  license  or  permit  to
    17  drive  and  any  non-resident  operating  privilege shall be immediately
    18  suspended and subsequently revoked, shall  be  revoked  for  refusal  to
    19  surrender  his or her mobile telephone and/or portable electronic device
    20  solely for the purpose of field testing, whether or not  the  person  is
    21  found  guilty  of a violation of section twelve hundred twenty-five-c or
    22  twelve hundred twenty-five-d of this article, refuses to  surrender  his
    23  or  her  mobile  telephone  or portable electronic device solely for the
    24  purpose of field testing, unless a court order has been granted pursuant
    25  to subdivision  four  of  this  section,  field  testing  shall  not  be
    26  conducted and a written report of such refusal shall be immediately made
    27  by the police officer before whom such refusal was made. Such report may
    28  be verified by having the report sworn to, or by affixing to such report
    29  a  form  notice  that  false statements made therein are punishable as a
    30  class A misdemeanor pursuant to section 210.45 of the penal law and such
    31  form notice together with the subscription of the deponent shall consti-
    32  tute a verification of the report.
    33    (2) The report of the police officer shall set forth  the  grounds  to
    34  believe that the person operated a motor vehicle involved in an accident
    35  or  collision  involving  damage  to real or personal property, personal
    36  injury or death while in possession of a mobile  telephone  or  portable
    37  electronic  device, that said person had refused to surrender his or her
    38  mobile telephone or portable electronic device for  field  testing,  and
    39  that  no field test was administered. The report shall be transmitted to
    40  the commissioner by the police officer within forty-eight hours  of  the
    41  refusal.
    42    (3)  For  persons  charged  with a violation of section twelve hundred
    43  twenty-five-c or twelve  hundred  twenty-five-d  of  this  article,  the
    44  license  or  permit  to  drive  and any non-resident operating privilege
    45  shall, upon the basis of such written report, be  temporarily  suspended
    46  by  the  court  without notice pending the determination of a hearing as
    47  provided in paragraph (c) of this subdivision.  Copies  of  such  report
    48  must  be transmitted by the court to the commissioner and such transmit-
    49  tal may not be waived even with the consent of all the  parties.    Such
    50  report  shall  be forwarded to the commissioner within forty-eight hours
    51  of such filing of charges.
    52    (4) The court or the commissioner shall provide  such  person  with  a
    53  scheduled  hearing date, a waiver form and such other information as may
    54  be required by the commissioner. If a hearing, as provided in  paragraph
    55  (c)  of  this  subdivision,  is  waived by such person, the commissioner
    56  shall immediately revoke the license, permit or  non-resident  operating

        S. 5392                             5
     1  privilege,  as  of the date of receipt of such waiver in accordance with
     2  paragraph (d) of this subdivision.
     3    (c)  Any  person  whose license or permit to drive or any non-resident
     4  operating privilege has been suspended pursuant to paragraph (b) of this
     5  subdivision is entitled to a hearing in accordance with a hearing sched-
     6  ule to be promulgated by the commissioner. If the  department  fails  to
     7  provide for such hearing fifteen days after the receipt of a report of a
     8  refusal,  the  license, permit to drive or non-resident operating privi-
     9  lege of such person shall be reinstated pending a  hearing  pursuant  to
    10  this section. The hearing shall be limited to the following issues:  (1)
    11  did  such  person  operate  a  motor  vehicle involved in an accident or
    12  collision involving damage to real or personal property, personal injury
    13  or death; (2) did such person possess a  mobile  telephone  or  portable
    14  electronic device at or near the time of such accident or collision; (3)
    15  was  such  person  given  sufficient  warning,  in  clear or unequivocal
    16  language, prior to such refusal that such refusal to  surrender  his  or
    17  her mobile telephone and/or portable electronic device for filed testing
    18  would  result  in  the immediate suspension and subsequent revocation of
    19  such person's license or operating privilege; and (4)  did  such  person
    20  refuse  to  surrender  his or her mobile telephone and/or portable elec-
    21  tronic device solely for the purpose of field testing.  If,  after  such
    22  hearing,  the  hearing  officer,  acting  on behalf of the commissioner,
    23  finds on any one of such issues in the  negative,  the  hearing  officer
    24  shall  immediately  terminate  any suspension arising from such refusal.
    25  If, after such hearing, the hearing officer, acting  on  behalf  of  the
    26  commissioner  finds  all  of the issues in the affirmative, such officer
    27  shall immediately revoke the license or permit to drive or any non-resi-
    28  dent operating privilege in accordance with paragraph (d) of this subdi-
    29  vision. A person who has had a license or permit to drive  or  non-resi-
    30  dent   operating   privilege  suspended  or  revoked  pursuant  to  this
    31  subdivision may appeal the findings of the hearing officer in accordance
    32  with article three-A of this chapter. Any person may waive the right  to
    33  a  hearing  under this section. Failure by such person to appear for the
    34  scheduled hearing shall constitute a waiver of such  hearing;  provided,
    35  however,  that such person may petition the commissioner for a new hear-
    36  ing which shall be held as soon as practicable.
    37    (d) (1) Any license which has been revoked pursuant to  paragraph  (c)
    38  of  this  subdivision  shall not be restored for at least one year after
    39  such revocation, nor thereafter, except in the discretion of the commis-
    40  sioner. However, no such license shall be restored for at least eighteen
    41  months after such revocation, nor thereafter except in the discretion of
    42  the commissioner, in any case where the person has had a  prior  revoca-
    43  tion  resulting from refusal to surrender his or her mobile telephone or
    44  portable electronic device for field testing  within  five  years  imme-
    45  diately preceding the date of such revocation.
    46    (2)  Except as otherwise provided, any person whose license, permit to
    47  drive or any non-resident operating privilege is revoked pursuant to the
    48  provisions of this section shall also be liable for a civil  penalty  in
    49  the  amount of five hundred dollars, except that if such revocation is a
    50  second or subsequent revocation pursuant to this section issued within a
    51  five year period, the civil penalty shall be  in  the  amount  of  seven
    52  hundred  fifty  dollars.  No  new  driver's  license  or permit shall be
    53  issued, or non-resident operating  privilege  restored  to  such  person
    54  unless  such  penalty  has  been  paid.  All  penalties collected by the
    55  department pursuant to the provisions of this section shall be the prop-

        S. 5392                             6
     1  erty of the state and shall be paid into the general fund of  the  state
     2  treasury.
     3    (e)  The  commissioner  shall promulgate such rules and regulations as
     4  may be necessary to effectuate the provisions of this section.
     5    (f) Evidence of a refusal to surrender a mobile telephone or  portable
     6  electronic  device  for  field testing shall be admissible in any trial,
     7  proceeding or hearing based on a violation of the provisions of  section
     8  twelve  hundred  twenty-five-c  or  twelve hundred twenty-five-d of this
     9  article but only upon a showing that the  person  was  given  sufficient
    10  warning,  in  clear  and  unequivocal  language,  of  the effect of such
    11  refusal and that the person persisted in the refusal.
    12    (g) Upon the request of the person who surrendered his or  her  mobile
    13  telephone  and/or  portable  electronic  device  for  field  testing the
    14  results of such testing shall be made available to such person.
    15    4. (a) Notwithstanding the provisions of  subdivision  three  of  this
    16  section,  no  person  who  operates  a motor vehicle in this state while
    17  possessing a mobile telephone or portable electronic device  may  refuse
    18  to  surrender such mobile telephone or portable electronic device solely
    19  for the purpose of field testing when a court order for such testing has
    20  been issued in accordance with the provisions of this subdivision.
    21    (b) Upon refusal by any person to surrender his or  her  mobile  tele-
    22  phone  and/or  portable electronic device for the purpose of field test-
    23  ing, the testing shall not be conducted unless a  police  officer  or  a
    24  district  attorney, as defined in subdivision thirty-two of section 1.20
    25  of the criminal procedure law, requests and obtains  a  court  order  to
    26  compel  a  person  to  surrender his or her mobile telephone or portable
    27  electronic device for field testing upon proof that such person was  the
    28  operator  of  a motor vehicle and in the course of such operation, he or
    29  she caused serious physical injury, as defined  in  subdivision  ten  of
    30  section 10.00 of the penal law, to or the death of another person.
    31    (c)(1)  An  application  for  a  court  order to compel surrender of a
    32  mobile telephone or portable electronic device for field testing, may be
    33  made to any supreme court justice, county court judge or district  court
    34  judge in the judicial district in which the incident occurred, or if the
    35  incident  occurred  in  the  city  of  New York before any supreme court
    36  justice or judge of the criminal court of the city  of  New  York.  Such
    37  application  may  be  communicated by telephone, radio or other means of
    38  electronic communication, or in person.
    39    (2) The applicant must provide identification by name and  title,  and
    40  must  state the purpose of the communication. Upon being advised that an
    41  application for a court order to compel surrender of a mobile  telephone
    42  and/or  portable electronic device solely for the purpose of field test-
    43  ing is being made, the court shall place under oath  the  applicant  and
    44  any  other person providing information in support of the application as
    45  provided in subparagraph three of this paragraph. After being sworn  the
    46  applicant must state that the person from whom the surrender of a mobile
    47  telephone  or  portable electronic device was requested was the operator
    48  of a motor vehicle and in the course of such operation, he or she caused
    49  serious physical injury to or the death  of  another  person,  and  such
    50  person  refused  to  surrender  his  or her mobile telephone or portable
    51  electronic device for field testing. The applicant  must  make  specific
    52  allegations of fact to support such statement. Any person properly iden-
    53  tified,  may  present sworn allegations of fact in support of the appli-
    54  cant's statement.
    55    (3) Upon being advised that an oral application for a court  order  to
    56  compel  a  person  to  surrender his or her mobile telephone or portable

        S. 5392                             7
     1  electronic device for field testing is being made, a  judge  or  justice
     2  shall  place  under  oath  the  applicant and any other person providing
     3  information in support of the application. Such oath or oaths and all of
     4  the remaining communication must be recorded, either by means of a voice
     5  recording  device or a stenographic record made, the judge must have the
     6  record transcribed, certify to the accuracy  of  the  transcription  and
     7  file  the original record and transcription with the court within seven-
     8  ty-two hours of the issuance of the court order.  If the longhand  notes
     9  are  taken,  the judge shall subscribe a copy and file it with the court
    10  within twenty-four hours of the issuance of the order.
    11    (4) If the court is satisfied that the requirements for  the  issuance
    12  of  a  court  order  pursuant to the provisions of paragraph (b) of this
    13  subdivision have been met, it may grant the  application  and  issue  an
    14  order  requiring  the person to surrender his or her mobile telephone or
    15  portable electronic device for the purpose  of  field  testing.  When  a
    16  judge  or  justice determines to issue an order to compel surrender of a
    17  mobile telephone or portable electronic device for the purpose of  field
    18  testing  based  on  an  oral  application,  the applicant therefor shall
    19  prepare the order in accordance with the instructions of  the  judge  or
    20  justice.  In  all  cases the order shall include the name of the issuing
    21  judge or justice, the name of the applicant, and the date  and  time  it
    22  was  issued.  It  must  be  signed  by the judge or justice if issued in
    23  person, or by the applicant if issued orally.
    24    (5) Any false statement by an applicant or any other person in support
    25  of an application for a court order shall subject  such  person  to  the
    26  offenses  for  perjury set forth in article two hundred ten of the penal
    27  law.
    28    (6) The chief administrator of the courts shall establish  a  schedule
    29  to provide that a sufficient number of judges or justices will be avail-
    30  able  in  each  judicial  district  to  hear oral applications for court
    31  orders as permitted by this section.
    32    § 7. Section 837 of the executive law  is  amended  by  adding  a  new
    33  subdivision 22 to read as follows:
    34    22.  Acting  by  and  through  the  commissioner, to, jointly with the
    35  commissioner of motor vehicles, promulgate rules  and  regulations,  and
    36  take  any  other action necessary to implement the provisions of section
    37  twelve hundred twenty-five-e of the vehicle and traffic law, relating to
    38  field testing of mobile telephones and portable electronic devices. Such
    39  actions shall include the testing and determination of  the  reliability
    40  and accuracy of electronic scanning devices used for such field testing.
    41  The  commissioner and commissioner of motor vehicles shall approve elec-
    42  tronic scanning devices which are reliable and accurate for the  purpose
    43  of conducting field testing.
    44    §  8.  This  act  shall  take effect immediately, except that sections
    45  four, five and six of this act shall take effect two  years  after  this
    46  act shall have become a law.
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