Lawmakers: Let police check cellphones after accidents

LAW WOULD ALLOW POLICE TO CHECK CELL PHONES

ALBANY -- A pair of state lawmakers called Tuesday for a New York law that would let police access a driver's cellphone after a car accident to see if they were using it before a crash.

Sen. Terrence Murphy, R-Yorktown, Westchester County, and Assemblyman Felix Ortiz, D-Brooklyn, said the measure would give police another tool to investigate distracted-driving accidents and hopefully discourage drivers from using their phones behind the wheel.

The bill is named Evan's Law after Evan Lieberman, a New Castle, Westchester County, teenager who was killed by a distracted driver in 2011.

"When you are in the car there is a multitude of things happening, and a lot of it has to do with the cell-phone use," Murphy said at a news conference Tuesday at the Capitol.

The bill would let police use "available technology" to determine whether a phone was in use at the time of an accident and would "not invade personal privacy by evaluating the personal content contained the device."

New York has bolstered its laws in recent years to crack down on distracted driving, and the new laws have led to a surge in tickets issued for either talking on the phone without a handheld device or texting and driving.

Drivers caught either talking on their cellphones or texting face five points on their licenses and a maximum fine of $200 for the first offense. For young drivers under 21 with junior licenses, first-offense convictions of texting or talking while driving can lead to a 120-day license or permit suspension.

Gov. Andrew Cuomo has pressed for the tougher laws, and he's added texting zones at rest stops to encourage people to keep their eyes on the road.

Cuomo has praised Evan's father, Ben Lieberman, for his advocacy for tougher distracted-driving laws in New York, and Lieberman attended Tuesday's news conference.

Lieberman said it is often difficult for police to access drivers' phones to see if they are using the device after an accident.

"When people were held accountable for drunk driving, that’s when positive change occurred," Lieberman said. "It’s time to recognize that distracted driving is a similar impairment and should be dealt with in a similar fashion."

It's unclear whether the measure will gain support of the full state Legislature. It comes amid heightened concern over law enforcement's access to cellphone data after the FBI cracked an iPhone belonging to one of the San Bernardino, Ca., shooters last year.

The legislative session runs until June.

New Castle Supervisor Robert Greenstein said the community has added stickers around town to encourage people to refrain from using their devices when they are driving and has stepped up enforcement. He said the Westchester town has issued more than 1,000 tickets over the last 15 months.

"Imagine if we gave out 1,000 tickets for drunk driving," Greenstein said. "The attention that would get and the significance of that. People would realize we have an epidemic on our hands."

Attorney Cheryl Meyers-Buth says the bill seems to be designed to fill a gap since right now police can't look at a person's cell phone without a search warrant.

"They really have tried to take the DWI law and use it as a basis for this law. And what I mean by that is as drivers, we all impliedly consent to a chemical test if we're involved in an accident, and the police have probable cause to think that we may have been drunk. Here, they're proposing that all drivers are going to impliedly consent as a condition of their license to having their phone tested to see whether or not they were distracted," says Meyers-Buth.

Evan's Law would apply to any accidents involving property damage, injuries or death. 

Meyers-Buth says the bill lacks a lot of details.

"There's no information in the proposed bill about the technology that's going to be used to access the phone. So if your phone is either code protected, or you have a PIN number, or fingerprint protected, how is it that this device can access the time that you last used your phone?" she asks.

The bill does say the electronic scanning device will be limited to determining whether you were using your phone or portable electronic device before or during the accident and that the scan would not include the content on your device. But Meyers-Buth also points out that the bill doesn't address training and how much that would cost or even how much the scanning devices themselves would cost.

"There's no fiscal information listed in the bill, so what the cost of all this would be, you can't tell. There's a lot of questions that I think need to be answered," says Meyers-Buth.


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