Intexicated While Driving: NMA E-Newsletter #387

New York State has legislation called Evan’s Law that is winding its way through the system. It would allow law enforcement to use a textalyzer to determine if you have been on your phone while driving.  This means even hands free phone usage, texting, surfing the web, and engaging with various apps can raise flags.  Using your phone while driving is tempting for many motorists especially if you are in a traffic jam or waiting at a long red light.

According to the Center for Disease Control & Prevention, each day in the U.S. over eight people are killed and 1,161 injured in crashes that are reported to involve a distracted driver.

Distracted driving means to drive while doing another activity that takes your attention away from the primary job of safely navigating the road. There are three distinct areas of distraction: visual, manual and cognitive.  Intexicated while driving generally involves all three.  Your eyes are averted from the road, your hands are off the wheel, and you are certainly thinking about something else other than driving.  Driving responsibly means keeping all these distractions to to a minimum or, at the most, to a level that doesn’t adversely affect your safe control of the vehicle.

What if you are a responsible driver and never drive while intexicated?  You do everything right but you could still become a victim of someone else’s intexication.  Colorado Attorney and NMA Member T. W. Cresswell recently had this to say in an email to the NMA office:

As a personal injury attorney, I see an alarming number of inexplicable rear-enders.  I’ve suffered several myself.  As you stop with the rest of traffic and someone SLAMS into your rear for no apparent reason, it is infuriating.  Texting is naturally suspected.  Under current evidence laws, the phone records of the defendant aren’t admissible because even though texting may be revealed at or near the time of the accident, it doesn’t prove that texting occurred when the accident occurred or that it caused it.  Seriously, I think that at least the laws of evidence should be changed to make phone records admissible to establish the inference of texting.  Lee v. Croskey (Mich. App., 2015). 

If Evan’s Law passes in NY State, it will be the first law of its kind in the U.S. that would allow law enforcement to use technology at the scene of a crash to attempt to determine if the collision was related to distracted driving by use of the phone.  Evan’s Law is named after Evan Lieberman, a 19-year old who was killed in 2011 as a backseat passenger of a car which was involved in a collision with a texting driver.

Assistant Speaker of the NY Assembly Felix Ortiz & Senator Terrence Murphy introduced the bipartisan S6325A bill which would help create a protocol for police and allow them immediate access to a driver’s cell phone.  Much like a breathalyzer attempts to determine blood alcohol content, a textalyzer would try to determine if the driver was actively using his/her phone at the time of the crash.  Cellebrite, the Israeli tech company that is currently developing the textalyzer insists there are no privacy issues.  It maintains that the device can only check to see if you were using your phone at the moment of the crash and not the contents on your phone.

Technology though is always moving faster than the law.  Fingerprint sensors, a new way for users to protect their phones, may also be a workaround for law enforcement.  In February, the FBI arrested Glendale, California resident Paytsar Bkhchadzhyan, on charges related to identity theft.  She was compelled by a search warrant to unlock her iPhone with her finger, an action that some experts say falls in a legal gray zone.

In a recent report for NBC News, Washington University privacy law professor, Neil Richards, said the search warrant was problematic for several reasons.  Opening the phone with a passcode would have violated Bkhchadzhyan’s Fifth Amendment protection against self-incrimination, but apparently the use of a fingerprint provides law enforcement some legal cover. “Most people don’t draw a distinction between a fingerprint and a password, but the law does,” Richards told NBC News.

These laws were written before smart phones and certainly before the biometric encrypted smart phones, that Apple, Samsung and other phone manufacturers have been pushing since the advent of the iPhone 5S in 2013.

Law enforcement is allowed to collect physical evidence during the course of an arrest, such as DNA evidence or fingerprints. But in the Bkhchadzhyan case, the fingerprint that unlocked her phone opened up a window to her entire life.

If law enforcement is permitted to do unwarranted phone dumps, regardless of the circumstances, the use of devices like the Textalyzer is going to open a whole host of privacy issues and legal challenges.

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