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New York’s Proposed “Textalyzer” Law

| Apr 17, 2016 | DWI

When a person drives drunk, it is usually possible for the police to test for the person’s blood alcohol content (BAC) soon after the accident, which can show whether or not the driver was committing a crime by driving while his or her BAC was over the legal limit. This is not so easy when a driver is texting and driving; police cannot easily identify after an accident whether the driver was driving while texting. This may soon change if a new bill proposed by New York State lawmakers becomes law.


Currently, under New York State driving while intoxicated (DWI) laws, a driver has to submit to testing when suspected of DWI, and if the driver refuses such testing, he or she may have his or her driver’s license revoked. The proposed law, which would be known as “Evan’s law,” seeks to make a similar rule with regards to drivers suspected of driving while texting.

The police would be allowed to request that drivers submit to having their cell phones checked, by allowing the police to use a device to access the phone’s data to determine if the driver was texting while driving. The law would apply if the driver was involved in an accident that causes injuries or property damage. Drivers who refuse this testing would also face license revocation. New York State law already prohibits drivers from engaging in a number of cell phone related activities while driving, including playing games, talking on a handheld phone, texting, or browsing the web. Violators face significant points on their license and various fines.

If the proposed bill becomes law, it is likely to be challenged on constitutional grounds due to the privacy interests at stake, and the general requirement of search warrants for police searches. The U.S. Supreme court held in the 2014 case Riley v. California, that the police cannot search a cell phone seized from a person who is under arrest without first obtaining a warrant. Police officers may not be able to get a warrant in the minutes after an accident, and they might argue that this would prohibit or slow down their ability to collect evidence.

It is possible, however, to gather texting or call logs from a driver’s cell phone carrier after an accident and pursuant to a lawful search warrant. Unlike a person’s BAC, which can dissipate with time, a person’s call or text history is not as easily erasable from the carrier’s records, even if it may be from a person’s device. Therefore, there is an argument that while the intent of the law may be noble in trying to cut down on the number of distracted drivers, there is a compelling argument that the law is an unnecessary overreach of police power. There may also be concerns regarding what other information the police may be able to access once they download a person’s cell phone data after an accident. The level of access to information beyond the last text sent would be troubling to most drivers.

Contact an Experienced Criminal Defense Attorney

If you have been arrested for a DWI or other criminal charges, you should contact an experienced criminal defense attorney for a consultation before making any statements to the police. Contact experienced Syracuse criminal defense attorney George F. Hildebrandt for a consultation today.