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
________________________________________________________________________
3955--B
2017-2018 Regular Sessions
IN ASSEMBLY
January 30, 2017
___________
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 --
recommitted to the Committee on Transportation in accordance with
Assembly Rule 3, sec. 2 -- committee discharged, bill amended, ordered
reprinted as amended and recommitted to said committee -- again
reported from said committee with amendments, 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-
16 ing that the problem has not only gotten worse, but is still greatly
17 misunderstood.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD02344-05-8
A. 3955--B 2
1 Furthermore, law enforcement has a difficult time enforcing these
2 public safety laws, especially after an accident where it is impossible
3 to discern whether the operator of a motor vehicle was in fact using his
4 or her cell phone immediately prior to or at the time of the collision.
5 Empowering our law enforcement with technology, which is able to imme-
6 diately determine cell phone usage without an inquiry into the content,
7 will allow enforcement of these laws after an accident while still
8 protecting essential privacy rights. Therefore, the legislature finds
9 that while technology has created this grave danger, it also has the
10 capacity to aid law enforcement in tackling and eradicating distracted
11 driving caused by mobile telephones and personal electronic devices.
12 The legislature further finds that a driver's license is a privilege
13 granted by the state, and maintaining such privilege requires continued
14 compliance with established conditions enumerated in law. One such
15 condition is implied consent, an accepted mechanism in combating driving
16 while under the influence of alcohol. Studies have concluded that text-
17 ing while driving impairs a driver to the level of .08 blood alcohol
18 level. Therefore, it is in the state's interest to treat this impairment
19 with a similar methodology to that of drunk driving. The state's
20 invested interest in promoting public safety and preventing senseless
21 loss of life justifies the creation of Evan's law.
22 § 2. Short title. This act shall be known and may be cited as "Evan's
23 law".
24 § 3. Section 215 of the vehicle and traffic law is amended by adding
25 two new subdivisions (d) and (e) to read as follows:
26 (d) The commissioner shall, jointly with the commissioner of criminal
27 justice services, promulgate rules and regulations, and take any other
28 action necessary to implement the provisions of section twelve hundred
29 twenty-five-e of this chapter, relating to field testing of mobile tele-
30 phones and portable electronic devices. Such actions shall include the
31 testing and determination of the reliability and accuracy of electronic
32 scanning devices used for such field testing. The commissioner and
33 commissioner of criminal justice services shall approve electronic scan-
34 ning devices which are reliable and accurate for the purpose of conduct-
35 ing field testing. The rules and regulations promulgated by the commis-
36 sioner shall not require any police department to purchase electronic
37 scanning devices for field testing. Participation in field testing of
38 mobile telephones and portable electronic devices using electronic scan-
39 ning devices shall be optional for police departments.
40 (e) The commissioner shall conduct a public education campaign relat-
41 ing to the field testing of mobile telephones and portable electronic
42 devices, and the implied consent to such testing of any person operating
43 a motor vehicle in this state. Such campaign shall include information
44 pamphlets provided with each application for a learner's permit or driv-
45 er's license, and each renewal thereof.
46 § 4. Paragraph (h) of subdivision 2 of section 503 of the vehicle and
47 traffic law, as amended by section 1 of part PP of chapter 59 of the
48 laws of 2009, is amended to read as follows:
49 (h) An applicant whose driver's license has been revoked pursuant to
50 (i) section five hundred ten of this title, (ii) section eleven hundred
51 ninety-three of this chapter, [and] (iii) section eleven hundred nine-
52 ty-four of this chapter, and (iv) section twelve hundred twenty-five-e
53 of this chapter, shall, upon application for issuance of a driver's
54 license, pay to the commissioner a fee of one hundred dollars. When the
55 basis for the revocation is a finding of driving after having consumed
56 alcohol pursuant to the provisions of section eleven hundred
A. 3955--B 3
1 ninety-two-a of this chapter, the fee to be paid to the commissioner
2 shall be one hundred dollars. Such fee is not refundable and shall not
3 be returned to the applicant regardless of the action the commissioner
4 may take on such person's application for reinstatement of such driving
5 license. Such fee shall be in addition to any other fees presently
6 levied but shall not apply to an applicant whose driver's license was
7 revoked for failure to pass a reexamination or to an applicant who has
8 been issued a conditional or restricted use license under the provisions
9 of article twenty-one-A or thirty-one of this chapter.
10 § 5. Subparagraph (iv) of paragraph (a) of subdivision 2 of section
11 511 of the vehicle and traffic law, as amended by chapter 607 of the
12 laws of 1993, is amended and a new paragraph (v) is added to read as
13 follows:
14 (iv) such person has in effect three or more suspensions, imposed on
15 at least three separate dates, for failure to answer, appear or pay a
16 fine, pursuant to subdivision three of section two hundred twenty-six or
17 subdivision four-a of section five hundred ten of this chapter[.]; or
18 (v) the suspension or revocation is based upon refusal to surrender a
19 mobile telephone or portable electronic device for field testing pursu-
20 ant to section twelve hundred twenty-five-e of this chapter.
21 § 6. The vehicle and traffic law is amended by adding a new section
22 1225-e to read as follows:
23 § 1225-e. Field testing of mobile telephones and portable electronic
24 devices. 1. For the purposes of this section, the following terms shall
25 have the following meanings:
26 (a) "Field testing" shall mean the use of an electronic scanning
27 device, approved and utilized in accordance with rules jointly promul-
28 gated by the commissioner and the commissioner of criminal justice
29 services, to determine whether or not the operator of a motor vehicle
30 was using a mobile telephone or a portable electronic device in
31 violation of section twelve hundred twenty-five-c or twelve hundred
32 twenty-five-d of this article. Provided, that such use of an electronic
33 scanning device shall be limited to determining whether the operator of
34 a motor vehicle was using a mobile telephone or portable electronic
35 device in violation of either such section at or near the time of the
36 accident or collision which provides the grounds for such testing.
37 Furthermore, no such electronic scan shall include the content or origin
38 of any communication or game conducted, or image or electronic data
39 viewed, on a mobile telephone or portable electronic device.
40 (b) "Mobile telephone" shall mean a mobile telephone as defined in
41 paragraph (a) of subdivision one for section twelve hundred
42 twenty-five-c of this article.
43 (c) "Portable electronic device" shall mean a portable electronic
44 device as defined in paragraph (a) of subdivision two of section twelve
45 hundred twenty-five-d of this article.
46 (d) "Using" shall mean:
47 (1) for the purposes of mobile telephones, using as defined in para-
48 graph (c) of subdivision one of section twelve hundred twenty-five-c of
49 this article; and
50 (2) for the purposes of portable electronic devices, using as defined
51 in paragraph (b) of subdivision two of section twelve hundred twenty-
52 five-d of this article.
53 2. Every person operating a motor vehicle which has been involved in
54 an accident or collision involving damage to real or personal property,
55 personal injury or death, and who has in his possession at or near the
56 time of such accident or collision, a mobile telephone or personal elec-
A. 3955--B 4
1 tronic device, shall at the request of a police officer, surrender his
2 or her mobile telephone and/or portable electronic device to the police
3 officer solely for the purpose of field testing such mobile telephone
4 and/or portable electronic device. If such field testing determines
5 that the operator of the motor vehicle was using his or her mobile tele-
6 phone or portable electronic device in violation of section twelve
7 hundred twenty-five-c or twelve hundred twenty-five-d of this article,
8 the results of such testing shall constitute evidence of any such
9 violation.
10 3. (a) Any person who operates a motor vehicle in this state shall be
11 deemed to have given consent to field testing of his or her mobile tele-
12 phone and/or portable electronic device for the purpose of determining
13 the use thereof while operating a motor vehicle provided that such test-
14 ing is conducted by or at the direction of a police officer, after such
15 person has operated a motor vehicle involved in an accident or collision
16 involving damage to real or personal property, personal injury or death.
17 (b)(1) If a person operating a motor vehicle involved in an accident
18 or collision involving damage to real or personal property, personal
19 injury or death has in his or her possession a mobile telephone or port-
20 able electronic device, having thereafter been requested to surrender
21 such mobile telephone and/or portable electronic device for field test-
22 ing, and having been informed that the person's license or permit to
23 drive and any non-resident operating privilege shall be immediately
24 suspended and subsequently revoked, shall be revoked for refusal to
25 surrender his or her mobile telephone and/or portable electronic device
26 solely for the purpose of field testing, whether or not the person is
27 found guilty of a violation of section twelve hundred twenty-five-c or
28 twelve hundred twenty-five-d of this article, refuses to surrender his
29 or her mobile telephone or portable electronic device solely for the
30 purpose of field testing, unless a court order has been granted pursuant
31 to subdivision four of this section, field testing shall not be
32 conducted and a written report of such refusal shall be immediately made
33 by the police officer before whom such refusal was made. Such report may
34 be verified by having the report sworn to, or by affixing to such report
35 a form notice that false statements made therein are punishable as a
36 class A misdemeanor pursuant to section 210.45 of the penal law and such
37 form notice together with the subscription of the deponent shall consti-
38 tute a verification of the report.
39 (2) The report of the police officer shall set forth the grounds to
40 believe that the person operated a motor vehicle involved in an accident
41 or collision involving damage to real or personal property, personal
42 injury or death while in possession of a mobile telephone or portable
43 electronic device, that said person had refused to surrender his or her
44 mobile telephone or portable electronic device for field testing, and
45 that no field test was administered. The report shall be transmitted to
46 the commissioner by the police officer within forty-eight hours of the
47 refusal.
48 (3) For persons charged with a violation of section twelve hundred
49 twenty-five-c or twelve hundred twenty-five-d of this article, the
50 license or permit to drive and any non-resident operating privilege
51 shall, upon the basis of such written report, be temporarily suspended
52 by the court without notice pending the determination of a hearing as
53 provided in paragraph (c) of this subdivision. Copies of such report
54 must be transmitted by the court to the commissioner and such transmit-
55 tal may not be waived even with the consent of all the parties. Such
A. 3955--B 5
1 report shall be forwarded to the commissioner within forty-eight hours
2 of such filing of charges.
3 (4) The court or the commissioner shall provide such person with a
4 scheduled hearing date, a waiver form and such other information as may
5 be required by the commissioner. If a hearing, as provided in paragraph
6 (c) of this subdivision, is waived by such person, the commissioner
7 shall immediately revoke the license, permit or non-resident operating
8 privilege, as of the date of receipt of such waiver in accordance with
9 paragraph (d) of this subdivision.
10 (c) Any person whose license or permit to drive or any non-resident
11 operating privilege has been suspended pursuant to paragraph (b) of this
12 subdivision is entitled to a hearing in accordance with a hearing sched-
13 ule to be promulgated by the commissioner. If the department fails to
14 provide for such hearing fifteen days after the receipt of a report of a
15 refusal, the license, permit to drive or non-resident operating privi-
16 lege of such person shall be reinstated pending a hearing pursuant to
17 this section. The hearing shall be limited to the following issues: (1)
18 did such person operate a motor vehicle involved in an accident or
19 collision involving damage to real or personal property, personal injury
20 or death; (2) did such person possess a mobile telephone or portable
21 electronic device at or near the time of such accident or collision; (3)
22 was such person given sufficient warning, in clear or unequivocal
23 language, prior to such refusal that such refusal to surrender his or
24 her mobile telephone and/or portable electronic device for filed testing
25 would result in the immediate suspension and subsequent revocation of
26 such person's license or operating privilege; and (4) did such person
27 refuse to surrender his or her mobile telephone and/or portable elec-
28 tronic device solely for the purpose of field testing. If, after such
29 hearing, the hearing officer, acting on behalf of the commissioner,
30 finds on any one of such issues in the negative, the hearing officer
31 shall immediately terminate any suspension arising from such refusal.
32 If, after such hearing, the hearing officer, acting on behalf of the
33 commissioner finds all of the issues in the affirmative, such officer
34 shall immediately revoke the license or permit to drive or any non-resi-
35 dent operating privilege in accordance with paragraph (d) of this subdi-
36 vision. A person who has had a license or permit to drive or non-resi-
37 dent operating privilege suspended or revoked pursuant to this
38 subdivision may appeal the findings of the hearing officer in accordance
39 with article three-A of this chapter. Any person may waive the right to
40 a hearing under this section. Failure by such person to appear for the
41 scheduled hearing shall constitute a waiver of such hearing; provided,
42 however, that such person may petition the commissioner for a new hear-
43 ing which shall be held as soon as practicable.
44 (d) (1) Any license which has been revoked pursuant to paragraph (c)
45 of this subdivision shall not be restored for at least one year after
46 such revocation, nor thereafter, except in the discretion of the commis-
47 sioner. However, no such license shall be restored for at least eighteen
48 months after such revocation, nor thereafter except in the discretion of
49 the commissioner, in any case where the person has had a prior revoca-
50 tion resulting from refusal to surrender his or her mobile telephone or
51 portable electronic device for field testing within five years imme-
52 diately preceding the date of such revocation.
53 (2) Except as otherwise provided, any person whose license, permit to
54 drive or any non-resident operating privilege is revoked pursuant to the
55 provisions of this section shall also be liable for a civil penalty in
56 the amount of five hundred dollars, except that if such revocation is a
A. 3955--B 6
1 second or subsequent revocation pursuant to this section issued within a
2 five year period, the civil penalty shall be in the amount of seven
3 hundred fifty dollars. No new driver's license or permit shall be
4 issued, or non-resident operating privilege restored to such person
5 unless such penalty has been paid. All penalties collected by the
6 department pursuant to the provisions of this section shall be the prop-
7 erty of the state and shall be paid into the general fund of the state
8 treasury.
9 (e) The commissioner shall promulgate such rules and regulations as
10 may be necessary to effectuate the provisions of this section.
11 (f) Evidence of a refusal to surrender a mobile telephone or portable
12 electronic device for field testing shall be admissible in any trial,
13 proceeding or hearing based on a violation of the provisions of section
14 twelve hundred twenty-five-c or twelve hundred twenty-five-d of this
15 article but only upon a showing that the person was given sufficient
16 warning, in clear and unequivocal language, of the effect of such
17 refusal and that the person persisted in the refusal.
18 (g) Upon the request of the person who surrendered his or her mobile
19 telephone and/or portable electronic device for field testing the
20 results of such testing shall be made available to such person.
21 4. (a) Notwithstanding the provisions of subdivision three of this
22 section, no person who operates a motor vehicle in this state while
23 possessing a mobile telephone or portable electronic device may refuse
24 to surrender such mobile telephone or portable electronic device solely
25 for the purpose of field testing when a court order for such testing has
26 been issued in accordance with the provisions of this subdivision.
27 (b) Upon refusal by any person to surrender his or her mobile tele-
28 phone and/or portable electronic device for the purpose of field test-
29 ing, the testing shall not be conducted unless a police officer or a
30 district attorney, as defined in subdivision thirty-two of section 1.20
31 of the criminal procedure law, requests and obtains a court order to
32 compel a person to surrender his or her mobile telephone or portable
33 electronic device for field testing upon proof that such person was the
34 operator of a motor vehicle and in the course of such operation, he or
35 she caused serious physical injury, as defined in subdivision ten of
36 section 10.00 of the penal law, to or the death of another person.
37 (c)(1) An application for a court order to compel surrender of a
38 mobile telephone or portable electronic device for field testing, may be
39 made to any supreme court justice, county court judge or district court
40 judge in the judicial district in which the incident occurred, or if the
41 incident occurred in the city of New York before any supreme court
42 justice or judge of the criminal court of the city of New York. Such
43 application may be communicated by telephone, radio or other means of
44 electronic communication, or in person.
45 (2) The applicant must provide identification by name and title, and
46 must state the purpose of the communication. Upon being advised that an
47 application for a court order to compel surrender of a mobile telephone
48 and/or portable electronic device solely for the purpose of field test-
49 ing is being made, the court shall place under oath the applicant and
50 any other person providing information in support of the application as
51 provided in subparagraph three of this paragraph. After being sworn the
52 applicant must state that the person from whom the surrender of a mobile
53 telephone or portable electronic device was requested was the operator
54 of a motor vehicle and in the course of such operation, he or she caused
55 serious physical injury to or the death of another person, and such
56 person refused to surrender his or her mobile telephone or portable
A. 3955--B 7
1 electronic device for field testing. The applicant must make specific
2 allegations of fact to support such statement. Any person properly iden-
3 tified, may present sworn allegations of fact in support of the appli-
4 cant's statement.
5 (3) Upon being advised that an oral application for a court order to
6 compel a person to surrender his or her mobile telephone or portable
7 electronic device for field testing is being made, a judge or justice
8 shall place under oath the applicant and any other person providing
9 information in support of the application. Such oath or oaths and all of
10 the remaining communication must be recorded, either by means of a voice
11 recording device or a stenographic record made, the judge must have the
12 record transcribed, certify to the accuracy of the transcription and
13 file the original record and transcription with the court within seven-
14 ty-two hours of the issuance of the court order. If the longhand notes
15 are taken, the judge shall subscribe a copy and file it with the court
16 within twenty-four hours of the issuance of the order.
17 (4) If the court is satisfied that the requirements for the issuance
18 of a court order pursuant to the provisions of paragraph (b) of this
19 subdivision have been met, it may grant the application and issue an
20 order requiring the person to surrender his or her mobile telephone or
21 portable electronic device for the purpose of field testing. When a
22 judge or justice determines to issue an order to compel surrender of a
23 mobile telephone or portable electronic device for the purpose of field
24 testing based on an oral application, the applicant therefor shall
25 prepare the order in accordance with the instructions of the judge or
26 justice. In all cases the order shall include the name of the issuing
27 judge or justice, the name of the applicant, and the date and time it
28 was issued. It must be signed by the judge or justice if issued in
29 person, or by the applicant if issued orally.
30 (5) Any false statement by an applicant or any other person in support
31 of an application for a court order shall subject such person to the
32 offenses for perjury set forth in article two hundred ten of the penal
33 law.
34 (6) The chief administrator of the courts shall establish a schedule
35 to provide that a sufficient number of judges or justices will be avail-
36 able in each judicial district to hear oral applications for court
37 orders as permitted by this section.
38 § 7. Section 837 of the executive law is amended by adding a new
39 subdivision 22 to read as follows:
40 22. Acting by and through the commissioner, to, jointly with the
41 commissioner of motor vehicles, promulgate rules and regulations, and
42 take any other action necessary to implement the provisions of section
43 twelve hundred twenty-five-e of the vehicle and traffic law, relating to
44 field testing of mobile telephones and portable electronic devices. Such
45 actions shall include the testing and determination of the reliability
46 and accuracy of electronic scanning devices used for such field testing.
47 The commissioner and commissioner of motor vehicles shall approve elec-
48 tronic scanning devices which are reliable and accurate for the purpose
49 of conducting field testing.
50 § 8. This act shall take effect immediately, except that sections
51 four, five and six of this act shall take effect two years after this
52 act shall have become a law.
