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
________________________________________________________________________
5074
2025-2026 Regular Sessions
IN SENATE
February 18, 2025
___________
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
21 their 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.
LBD08562-01-5
S. 5074 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. 5074 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 of section twelve hundred twenty-five-c
36 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 their 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 their
52 mobile telephone and/or portable electronic device to the police officer
53 solely for the purpose of field testing such mobile telephone and/or
54 portable electronic device. If such field testing determines that the
55 operator of the motor vehicle was using their mobile telephone or port-
56 able electronic device in violation of section twelve hundred twenty-
S. 5074 4
1 five-c or twelve hundred twenty-five-d of this article, the results of
2 such testing shall constitute evidence of any such violation.
3 3. (a) Any person who operates a motor vehicle in this state shall be
4 deemed to have given consent to field testing of their mobile telephone
5 and/or portable electronic device for the purpose of determining the use
6 thereof while operating a motor vehicle provided that such testing is
7 conducted by or at the direction of a police officer, after such person
8 has operated a motor vehicle involved in an accident or collision
9 involving damage to real or personal property, personal injury or death.
10 (b) (1) If a person operating a motor vehicle involved in an accident
11 or collision involving damage to real or personal property, personal
12 injury or death has in their possession a mobile telephone or portable
13 electronic device, having thereafter been requested to surrender such
14 mobile telephone and/or portable electronic device for field testing,
15 and having been informed that the person's license or permit to drive
16 and any non-resident operating privilege shall be immediately suspended
17 and subsequently revoked, shall be revoked for refusal to surrender
18 their mobile telephone and/or portable electronic device solely for the
19 purpose of field testing, whether or not the person is found guilty of a
20 violation of section twelve hundred twenty-five-c or twelve hundred
21 twenty-five-d of this article, refuses to surrender their mobile tele-
22 phone or portable electronic device solely for the purpose of field
23 testing, unless a court order has been granted pursuant to subdivision
24 four of this section, field testing shall not be conducted and a written
25 report of such refusal shall be immediately made by the police officer
26 before whom such refusal was made. Such report may be verified by having
27 the report sworn to, or by affixing to such report a form notice that
28 false statements made therein are punishable as a class A misdemeanor
29 pursuant to section 210.45 of the penal law and such form notice togeth-
30 er with the subscription of the deponent shall constitute a verification
31 of the report.
32 (2) The report of the police officer shall set forth the grounds to
33 believe that the person operated a motor vehicle involved in an accident
34 or collision involving damage to real or personal property, personal
35 injury or death while in possession of a mobile telephone or portable
36 electronic device, that said person had refused to surrender their
37 mobile telephone or portable electronic device for field testing, and
38 that no field test was administered. The report shall be transmitted to
39 the commissioner by the police officer within forty-eight hours of the
40 refusal.
41 (3) For persons charged with a violation of section twelve hundred
42 twenty-five-c or twelve hundred twenty-five-d of this article, the
43 license or permit to drive and any non-resident operating privilege
44 shall, upon the basis of such written report, be temporarily suspended
45 by the court without notice pending the determination of a hearing as
46 provided in paragraph (c) of this subdivision. Copies of such report
47 must be transmitted by the court to the commissioner and such transmit-
48 tal may not be waived even with the consent of all the parties. Such
49 report shall be forwarded to the commissioner within forty-eight hours
50 of such filing of charges.
51 (4) The court or the commissioner shall provide such person with a
52 scheduled hearing date, a waiver form and such other information as may
53 be required by the commissioner. If a hearing, as provided in paragraph
54 (c) of this subdivision, is waived by such person, the commissioner
55 shall immediately revoke the license, permit or non-resident operating
S. 5074 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 their
17 mobile telephone and/or portable electronic device for field 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 their mobile telephone and/or portable electronic
21 device solely for the purpose of field testing. If, after such hearing,
22 the hearing officer, acting on behalf of the commissioner, finds on any
23 one of such issues in the negative, the hearing officer shall immediate-
24 ly terminate any suspension arising from such refusal. If, after such
25 hearing, the hearing officer, acting on behalf of the commissioner finds
26 all of the issues in the affirmative, such officer shall immediately
27 revoke the license or permit to drive or any non-resident operating
28 privilege in accordance with paragraph (d) of this subdivision. A person
29 who has had a license or permit to drive or non-resident operating priv-
30 ilege suspended or revoked pursuant to this subdivision may appeal the
31 findings of the hearing officer in accordance with article three-A of
32 this chapter. Any person may waive the right to a hearing under this
33 section. Failure by such person to appear for the scheduled hearing
34 shall constitute a waiver of such hearing; provided, however, that such
35 person may petition the commissioner for a new hearing which shall be
36 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 their mobile telephone or port-
44 able electronic device for field testing within five years immediately
45 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. 5074 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 their mobile tele-
13 phone and/or portable electronic device for field testing the results of
14 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 their mobile telephone
22 and/or portable electronic device for the purpose of field testing, the
23 testing shall not be conducted unless a police officer or a district
24 attorney, as defined in subdivision thirty-two of section 1.20 of the
25 criminal procedure law, requests and obtains a court order to compel a
26 person to surrender their mobile telephone or portable electronic device
27 for field testing upon proof that such person was the operator of a
28 motor vehicle and in the course of such operation, they caused serious
29 physical injury, as defined in subdivision ten of section 10.00 of the
30 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, they caused
49 serious physical injury to or the death of another person, and such
50 person refused to surrender their mobile telephone or portable electron-
51 ic device for field testing. The applicant must make specific allega-
52 tions of fact to support such statement. Any person properly identified,
53 may present sworn allegations of fact in support of the applicant's
54 statement.
55 (3) Upon being advised that an oral application for a court order to
56 compel a person to surrender their mobile telephone or portable elec-
S. 5074 7
1 tronic device for field testing is being made, a judge or justice shall
2 place under oath the applicant and any other person providing informa-
3 tion in support of the application. Such oath or oaths and all of the
4 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 their mobile telephone or port-
15 able electronic device for the purpose of field testing. When a judge or
16 justice determines to issue an order to compel surrender of a mobile
17 telephone or portable electronic device for the purpose of field testing
18 based on an oral application, the applicant therefor shall prepare the
19 order in accordance with the instructions of the judge or justice. In
20 all cases the order shall include the name of the issuing judge or
21 justice, the name of the applicant, and the date and time it was issued.
22 It must be signed by the judge or justice if issued in person, or by the
23 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 24 to read as follows:
34 24. 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.
