S T A T E O F N E W Y O R K
________________________________________________________________________
3955--B
2017-2018 Regular Sessions
I N A S S E M B L Y
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:
Section 1. Legislative intent. The legislature hereby finds that the
use of mobile telephones and/or personal electronic devices has dras-
tically increased the prevalence of distracted driving. This destructive
behavior endangers the lives of every driver and passenger traveling on
New York state roadways. In 2001, this legislature enacted legislation
prohibiting the use of mobile telephones while driving, and in 2009
updated the law to include all portable electronic devices. The execu-
tive branch initiated a public campaign against cell phone use while
driving, and has even established "text stops" along all major highways.
While these efforts have brought much needed attention to the dangers of
distracted driving, reports indicate that 67 percent of drivers admit to
continued use of their cell phones while driving despite knowledge of
the inherent danger to themselves and others on the road. A 10 year
trend of declining collisions and casualties was reversed this year as
crashes are up 14 percent, and fatalities increased 8 percent, suggest-
ing that the problem has not only gotten worse, but is still greatly
misunderstood.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD02344-05-8
A. 3955--B 2
Furthermore, law enforcement has a difficult time enforcing these
public safety laws, especially after an accident where it is impossible
to discern whether the operator of a motor vehicle was in fact using his
or her cell phone immediately prior to or at the time of the collision.
Empowering our law enforcement with technology, which is able to imme-
diately determine cell phone usage without an inquiry into the content,
will allow enforcement of these laws after an accident while still
protecting essential privacy rights. Therefore, the legislature finds
that while technology has created this grave danger, it also has the
capacity to aid law enforcement in tackling and eradicating distracted
driving caused by mobile telephones and personal electronic devices.
The legislature further finds that a driver's license is a privilege
granted by the state, and maintaining such privilege requires continued
compliance with established conditions enumerated in law. One such
condition is implied consent, an accepted mechanism in combating driving
while under the influence of alcohol. Studies have concluded that text-
ing while driving impairs a driver to the level of .08 blood alcohol
level. Therefore, it is in the state's interest to treat this impairment
with a similar methodology to that of drunk driving. The state's
invested interest in promoting public safety and preventing senseless
loss of life justifies the creation of Evan's law.
§ 2. Short title. This act shall be known and may be cited as "Evan's
law".
§ 3. Section 215 of the vehicle and traffic law is amended by adding
two new subdivisions (d) and (e) to read as follows:
(D) THE COMMISSIONER SHALL, JOINTLY WITH THE COMMISSIONER OF CRIMINAL
JUSTICE SERVICES, PROMULGATE RULES AND REGULATIONS, AND TAKE ANY OTHER
ACTION NECESSARY TO IMPLEMENT THE PROVISIONS OF SECTION TWELVE HUNDRED
TWENTY-FIVE-E OF THIS CHAPTER, RELATING TO FIELD TESTING OF MOBILE TELE-
PHONES AND PORTABLE ELECTRONIC DEVICES. SUCH ACTIONS SHALL INCLUDE THE
TESTING AND DETERMINATION OF THE RELIABILITY AND ACCURACY OF ELECTRONIC
SCANNING DEVICES USED FOR SUCH FIELD TESTING. THE COMMISSIONER AND
COMMISSIONER OF CRIMINAL JUSTICE SERVICES SHALL APPROVE ELECTRONIC SCAN-
NING DEVICES WHICH ARE RELIABLE AND ACCURATE FOR THE PURPOSE OF CONDUCT-
ING FIELD TESTING. THE RULES AND REGULATIONS PROMULGATED BY THE COMMIS-
SIONER SHALL NOT REQUIRE ANY POLICE DEPARTMENT TO PURCHASE ELECTRONIC
SCANNING DEVICES FOR FIELD TESTING. PARTICIPATION IN FIELD TESTING OF
MOBILE TELEPHONES AND PORTABLE ELECTRONIC DEVICES USING ELECTRONIC SCAN-
NING DEVICES SHALL BE OPTIONAL FOR POLICE DEPARTMENTS.
(E) THE COMMISSIONER SHALL CONDUCT A PUBLIC EDUCATION CAMPAIGN RELAT-
ING TO THE FIELD TESTING OF MOBILE TELEPHONES AND PORTABLE ELECTRONIC
DEVICES, AND THE IMPLIED CONSENT TO SUCH TESTING OF ANY PERSON OPERATING
A MOTOR VEHICLE IN THIS STATE. SUCH CAMPAIGN SHALL INCLUDE INFORMATION
PAMPHLETS PROVIDED WITH EACH APPLICATION FOR A LEARNER'S PERMIT OR DRIV-
ER'S LICENSE, AND EACH RENEWAL THEREOF.
§ 4. Paragraph (h) of subdivision 2 of section 503 of the vehicle and
traffic law, as amended by section 1 of part PP of chapter 59 of the
laws of 2009, is amended to read as follows:
(h) An applicant whose driver's license has been revoked pursuant to
(i) section five hundred ten of this title, (ii) section eleven hundred
ninety-three of this chapter, [and] (iii) section eleven hundred nine-
ty-four of this chapter, AND (IV) SECTION TWELVE HUNDRED TWENTY-FIVE-E
OF THIS CHAPTER, shall, upon application for issuance of a driver's
license, pay to the commissioner a fee of one hundred dollars. When the
basis for the revocation is a finding of driving after having consumed
alcohol pursuant to the provisions of section eleven hundred
A. 3955--B 3
ninety-two-a of this chapter, the fee to be paid to the commissioner
shall be one hundred dollars. Such fee is not refundable and shall not
be returned to the applicant regardless of the action the commissioner
may take on such person's application for reinstatement of such driving
license. Such fee shall be in addition to any other fees presently
levied but shall not apply to an applicant whose driver's license was
revoked for failure to pass a reexamination or to an applicant who has
been issued a conditional or restricted use license under the provisions
of article twenty-one-A or thirty-one of this chapter.
§ 5. Subparagraph (iv) of paragraph (a) of subdivision 2 of section
511 of the vehicle and traffic law, as amended by chapter 607 of the
laws of 1993, is amended and a new paragraph (v) is added to read as
follows:
(iv) such person has in effect three or more suspensions, imposed on
at least three separate dates, for failure to answer, appear or pay a
fine, pursuant to subdivision three of section two hundred twenty-six or
subdivision four-a of section five hundred ten of this chapter[.]; OR
(V) THE SUSPENSION OR REVOCATION IS BASED UPON REFUSAL TO SURRENDER A
MOBILE TELEPHONE OR PORTABLE ELECTRONIC DEVICE FOR FIELD TESTING PURSU-
ANT TO SECTION TWELVE HUNDRED TWENTY-FIVE-E OF THIS CHAPTER.
§ 6. The vehicle and traffic law is amended by adding a new section
1225-e to read as follows:
§ 1225-E. FIELD TESTING OF MOBILE TELEPHONES AND PORTABLE ELECTRONIC
DEVICES. 1. FOR THE PURPOSES OF THIS SECTION, THE FOLLOWING TERMS SHALL
HAVE THE FOLLOWING MEANINGS:
(A) "FIELD TESTING" SHALL MEAN THE USE OF AN ELECTRONIC SCANNING
DEVICE, APPROVED AND UTILIZED IN ACCORDANCE WITH RULES JOINTLY PROMUL-
GATED BY THE COMMISSIONER AND THE COMMISSIONER OF CRIMINAL JUSTICE
SERVICES, TO DETERMINE WHETHER OR NOT THE OPERATOR OF A MOTOR VEHICLE
WAS USING A MOBILE TELEPHONE OR A PORTABLE ELECTRONIC DEVICE IN
VIOLATION OF SECTION TWELVE HUNDRED TWENTY-FIVE-C OR TWELVE HUNDRED
TWENTY-FIVE-D OF THIS ARTICLE. PROVIDED, THAT SUCH USE OF AN ELECTRONIC
SCANNING DEVICE SHALL BE LIMITED TO DETERMINING WHETHER THE OPERATOR OF
A MOTOR VEHICLE WAS USING A MOBILE TELEPHONE OR PORTABLE ELECTRONIC
DEVICE IN VIOLATION OF EITHER SUCH SECTION AT OR NEAR THE TIME OF THE
ACCIDENT OR COLLISION WHICH PROVIDES THE GROUNDS FOR SUCH TESTING.
FURTHERMORE, NO SUCH ELECTRONIC SCAN SHALL INCLUDE THE CONTENT OR ORIGIN
OF ANY COMMUNICATION OR GAME CONDUCTED, OR IMAGE OR ELECTRONIC DATA
VIEWED, ON A MOBILE TELEPHONE OR PORTABLE ELECTRONIC DEVICE.
(B) "MOBILE TELEPHONE" SHALL MEAN A MOBILE TELEPHONE AS DEFINED IN
PARAGRAPH (A) OF SUBDIVISION ONE FOR SECTION TWELVE HUNDRED
TWENTY-FIVE-C OF THIS ARTICLE.
(C) "PORTABLE ELECTRONIC DEVICE" SHALL MEAN A PORTABLE ELECTRONIC
DEVICE AS DEFINED IN PARAGRAPH (A) OF SUBDIVISION TWO OF SECTION TWELVE
HUNDRED TWENTY-FIVE-D OF THIS ARTICLE.
(D) "USING" SHALL MEAN:
(1) FOR THE PURPOSES OF MOBILE TELEPHONES, USING AS DEFINED IN PARA-
GRAPH (C) OF SUBDIVISION ONE OF SECTION TWELVE HUNDRED TWENTY-FIVE-C OF
THIS ARTICLE; AND
(2) FOR THE PURPOSES OF PORTABLE ELECTRONIC DEVICES, USING AS DEFINED
IN PARAGRAPH (B) OF SUBDIVISION TWO OF SECTION TWELVE HUNDRED TWENTY-
FIVE-D OF THIS ARTICLE.
2. EVERY PERSON OPERATING A MOTOR VEHICLE WHICH HAS BEEN INVOLVED IN
AN ACCIDENT OR COLLISION INVOLVING DAMAGE TO REAL OR PERSONAL PROPERTY,
PERSONAL INJURY OR DEATH, AND WHO HAS IN HIS POSSESSION AT OR NEAR THE
TIME OF SUCH ACCIDENT OR COLLISION, A MOBILE TELEPHONE OR PERSONAL ELEC-
A. 3955--B 4
TRONIC DEVICE, SHALL AT THE REQUEST OF A POLICE OFFICER, SURRENDER HIS
OR HER MOBILE TELEPHONE AND/OR PORTABLE ELECTRONIC DEVICE TO THE POLICE
OFFICER SOLELY FOR THE PURPOSE OF FIELD TESTING SUCH MOBILE TELEPHONE
AND/OR PORTABLE ELECTRONIC DEVICE. IF SUCH FIELD TESTING DETERMINES
THAT THE OPERATOR OF THE MOTOR VEHICLE WAS USING HIS OR HER MOBILE TELE-
PHONE OR PORTABLE ELECTRONIC DEVICE IN VIOLATION OF SECTION TWELVE
HUNDRED TWENTY-FIVE-C OR TWELVE HUNDRED TWENTY-FIVE-D OF THIS ARTICLE,
THE RESULTS OF SUCH TESTING SHALL CONSTITUTE EVIDENCE OF ANY SUCH
VIOLATION.
3. (A) ANY PERSON WHO OPERATES A MOTOR VEHICLE IN THIS STATE SHALL BE
DEEMED TO HAVE GIVEN CONSENT TO FIELD TESTING OF HIS OR HER MOBILE TELE-
PHONE AND/OR PORTABLE ELECTRONIC DEVICE FOR THE PURPOSE OF DETERMINING
THE USE THEREOF WHILE OPERATING A MOTOR VEHICLE PROVIDED THAT SUCH TEST-
ING IS CONDUCTED BY OR AT THE DIRECTION OF A POLICE OFFICER, AFTER SUCH
PERSON HAS OPERATED A MOTOR VEHICLE INVOLVED IN AN ACCIDENT OR COLLISION
INVOLVING DAMAGE TO REAL OR PERSONAL PROPERTY, PERSONAL INJURY OR DEATH.
(B)(1) IF A PERSON OPERATING A MOTOR VEHICLE INVOLVED IN AN ACCIDENT
OR COLLISION INVOLVING DAMAGE TO REAL OR PERSONAL PROPERTY, PERSONAL
INJURY OR DEATH HAS IN HIS OR HER POSSESSION A MOBILE TELEPHONE OR PORT-
ABLE ELECTRONIC DEVICE, HAVING THEREAFTER BEEN REQUESTED TO SURRENDER
SUCH MOBILE TELEPHONE AND/OR PORTABLE ELECTRONIC DEVICE FOR FIELD TEST-
ING, AND HAVING BEEN INFORMED THAT THE PERSON'S LICENSE OR PERMIT TO
DRIVE AND ANY NON-RESIDENT OPERATING PRIVILEGE SHALL BE IMMEDIATELY
SUSPENDED AND SUBSEQUENTLY REVOKED, SHALL BE REVOKED FOR REFUSAL TO
SURRENDER HIS OR HER MOBILE TELEPHONE AND/OR PORTABLE ELECTRONIC DEVICE
SOLELY FOR THE PURPOSE OF FIELD TESTING, WHETHER OR NOT THE PERSON IS
FOUND GUILTY OF A VIOLATION OF SECTION TWELVE HUNDRED TWENTY-FIVE-C OR
TWELVE HUNDRED TWENTY-FIVE-D OF THIS ARTICLE, REFUSES TO SURRENDER HIS
OR HER MOBILE TELEPHONE OR PORTABLE ELECTRONIC DEVICE SOLELY FOR THE
PURPOSE OF FIELD TESTING, UNLESS A COURT ORDER HAS BEEN GRANTED PURSUANT
TO SUBDIVISION FOUR OF THIS SECTION, FIELD TESTING SHALL NOT BE
CONDUCTED AND A WRITTEN REPORT OF SUCH REFUSAL SHALL BE IMMEDIATELY MADE
BY THE POLICE OFFICER BEFORE WHOM SUCH REFUSAL WAS MADE. SUCH REPORT MAY
BE VERIFIED BY HAVING THE REPORT SWORN TO, OR BY AFFIXING TO SUCH REPORT
A FORM NOTICE THAT FALSE STATEMENTS MADE THEREIN ARE PUNISHABLE AS A
CLASS A MISDEMEANOR PURSUANT TO SECTION 210.45 OF THE PENAL LAW AND SUCH
FORM NOTICE TOGETHER WITH THE SUBSCRIPTION OF THE DEPONENT SHALL CONSTI-
TUTE A VERIFICATION OF THE REPORT.
(2) THE REPORT OF THE POLICE OFFICER SHALL SET FORTH THE GROUNDS TO
BELIEVE THAT THE PERSON OPERATED A MOTOR VEHICLE INVOLVED IN AN ACCIDENT
OR COLLISION INVOLVING DAMAGE TO REAL OR PERSONAL PROPERTY, PERSONAL
INJURY OR DEATH WHILE IN POSSESSION OF A MOBILE TELEPHONE OR PORTABLE
ELECTRONIC DEVICE, THAT SAID PERSON HAD REFUSED TO SURRENDER HIS OR HER
MOBILE TELEPHONE OR PORTABLE ELECTRONIC DEVICE FOR FIELD TESTING, AND
THAT NO FIELD TEST WAS ADMINISTERED. THE REPORT SHALL BE TRANSMITTED TO
THE COMMISSIONER BY THE POLICE OFFICER WITHIN FORTY-EIGHT HOURS OF THE
REFUSAL.
(3) FOR PERSONS CHARGED WITH A VIOLATION OF SECTION TWELVE HUNDRED
TWENTY-FIVE-C OR TWELVE HUNDRED TWENTY-FIVE-D OF THIS ARTICLE, THE
LICENSE OR PERMIT TO DRIVE AND ANY NON-RESIDENT OPERATING PRIVILEGE
SHALL, UPON THE BASIS OF SUCH WRITTEN REPORT, BE TEMPORARILY SUSPENDED
BY THE COURT WITHOUT NOTICE PENDING THE DETERMINATION OF A HEARING AS
PROVIDED IN PARAGRAPH (C) OF THIS SUBDIVISION. COPIES OF SUCH REPORT
MUST BE TRANSMITTED BY THE COURT TO THE COMMISSIONER AND SUCH TRANSMIT-
TAL MAY NOT BE WAIVED EVEN WITH THE CONSENT OF ALL THE PARTIES. SUCH
A. 3955--B 5
REPORT SHALL BE FORWARDED TO THE COMMISSIONER WITHIN FORTY-EIGHT HOURS
OF SUCH FILING OF CHARGES.
(4) THE COURT OR THE COMMISSIONER SHALL PROVIDE SUCH PERSON WITH A
SCHEDULED HEARING DATE, A WAIVER FORM AND SUCH OTHER INFORMATION AS MAY
BE REQUIRED BY THE COMMISSIONER. IF A HEARING, AS PROVIDED IN PARAGRAPH
(C) OF THIS SUBDIVISION, IS WAIVED BY SUCH PERSON, THE COMMISSIONER
SHALL IMMEDIATELY REVOKE THE LICENSE, PERMIT OR NON-RESIDENT OPERATING
PRIVILEGE, AS OF THE DATE OF RECEIPT OF SUCH WAIVER IN ACCORDANCE WITH
PARAGRAPH (D) OF THIS SUBDIVISION.
(C) ANY PERSON WHOSE LICENSE OR PERMIT TO DRIVE OR ANY NON-RESIDENT
OPERATING PRIVILEGE HAS BEEN SUSPENDED PURSUANT TO PARAGRAPH (B) OF THIS
SUBDIVISION IS ENTITLED TO A HEARING IN ACCORDANCE WITH A HEARING SCHED-
ULE TO BE PROMULGATED BY THE COMMISSIONER. IF THE DEPARTMENT FAILS TO
PROVIDE FOR SUCH HEARING FIFTEEN DAYS AFTER THE RECEIPT OF A REPORT OF A
REFUSAL, THE LICENSE, PERMIT TO DRIVE OR NON-RESIDENT OPERATING PRIVI-
LEGE OF SUCH PERSON SHALL BE REINSTATED PENDING A HEARING PURSUANT TO
THIS SECTION. THE HEARING SHALL BE LIMITED TO THE FOLLOWING ISSUES: (1)
DID SUCH PERSON OPERATE A MOTOR VEHICLE INVOLVED IN AN ACCIDENT OR
COLLISION INVOLVING DAMAGE TO REAL OR PERSONAL PROPERTY, PERSONAL INJURY
OR DEATH; (2) DID SUCH PERSON POSSESS A MOBILE TELEPHONE OR PORTABLE
ELECTRONIC DEVICE AT OR NEAR THE TIME OF SUCH ACCIDENT OR COLLISION; (3)
WAS SUCH PERSON GIVEN SUFFICIENT WARNING, IN CLEAR OR UNEQUIVOCAL
LANGUAGE, PRIOR TO SUCH REFUSAL THAT SUCH REFUSAL TO SURRENDER HIS OR
HER MOBILE TELEPHONE AND/OR PORTABLE ELECTRONIC DEVICE FOR FILED TESTING
WOULD RESULT IN THE IMMEDIATE SUSPENSION AND SUBSEQUENT REVOCATION OF
SUCH PERSON'S LICENSE OR OPERATING PRIVILEGE; AND (4) DID SUCH PERSON
REFUSE TO SURRENDER HIS OR HER MOBILE TELEPHONE AND/OR PORTABLE ELEC-
TRONIC DEVICE SOLELY FOR THE PURPOSE OF FIELD TESTING. IF, AFTER SUCH
HEARING, THE HEARING OFFICER, ACTING ON BEHALF OF THE COMMISSIONER,
FINDS ON ANY ONE OF SUCH ISSUES IN THE NEGATIVE, THE HEARING OFFICER
SHALL IMMEDIATELY TERMINATE ANY SUSPENSION ARISING FROM SUCH REFUSAL.
IF, AFTER SUCH HEARING, THE HEARING OFFICER, ACTING ON BEHALF OF THE
COMMISSIONER FINDS ALL OF THE ISSUES IN THE AFFIRMATIVE, SUCH OFFICER
SHALL IMMEDIATELY REVOKE THE LICENSE OR PERMIT TO DRIVE OR ANY NON-RESI-
DENT OPERATING PRIVILEGE IN ACCORDANCE WITH PARAGRAPH (D) OF THIS SUBDI-
VISION. A PERSON WHO HAS HAD A LICENSE OR PERMIT TO DRIVE OR NON-RESI-
DENT OPERATING PRIVILEGE SUSPENDED OR REVOKED PURSUANT TO THIS
SUBDIVISION MAY APPEAL THE FINDINGS OF THE HEARING OFFICER IN ACCORDANCE
WITH ARTICLE THREE-A OF THIS CHAPTER. ANY PERSON MAY WAIVE THE RIGHT TO
A HEARING UNDER THIS SECTION. FAILURE BY SUCH PERSON TO APPEAR FOR THE
SCHEDULED HEARING SHALL CONSTITUTE A WAIVER OF SUCH HEARING; PROVIDED,
HOWEVER, THAT SUCH PERSON MAY PETITION THE COMMISSIONER FOR A NEW HEAR-
ING WHICH SHALL BE HELD AS SOON AS PRACTICABLE.
(D) (1) ANY LICENSE WHICH HAS BEEN REVOKED PURSUANT TO PARAGRAPH (C)
OF THIS SUBDIVISION SHALL NOT BE RESTORED FOR AT LEAST ONE YEAR AFTER
SUCH REVOCATION, NOR THEREAFTER, EXCEPT IN THE DISCRETION OF THE COMMIS-
SIONER. HOWEVER, NO SUCH LICENSE SHALL BE RESTORED FOR AT LEAST EIGHTEEN
MONTHS AFTER SUCH REVOCATION, NOR THEREAFTER EXCEPT IN THE DISCRETION OF
THE COMMISSIONER, IN ANY CASE WHERE THE PERSON HAS HAD A PRIOR REVOCA-
TION RESULTING FROM REFUSAL TO SURRENDER HIS OR HER MOBILE TELEPHONE OR
PORTABLE ELECTRONIC DEVICE FOR FIELD TESTING WITHIN FIVE YEARS IMME-
DIATELY PRECEDING THE DATE OF SUCH REVOCATION.
(2) EXCEPT AS OTHERWISE PROVIDED, ANY PERSON WHOSE LICENSE, PERMIT TO
DRIVE OR ANY NON-RESIDENT OPERATING PRIVILEGE IS REVOKED PURSUANT TO THE
PROVISIONS OF THIS SECTION SHALL ALSO BE LIABLE FOR A CIVIL PENALTY IN
THE AMOUNT OF FIVE HUNDRED DOLLARS, EXCEPT THAT IF SUCH REVOCATION IS A
A. 3955--B 6
SECOND OR SUBSEQUENT REVOCATION PURSUANT TO THIS SECTION ISSUED WITHIN A
FIVE YEAR PERIOD, THE CIVIL PENALTY SHALL BE IN THE AMOUNT OF SEVEN
HUNDRED FIFTY DOLLARS. NO NEW DRIVER'S LICENSE OR PERMIT SHALL BE
ISSUED, OR NON-RESIDENT OPERATING PRIVILEGE RESTORED TO SUCH PERSON
UNLESS SUCH PENALTY HAS BEEN PAID. ALL PENALTIES COLLECTED BY THE
DEPARTMENT PURSUANT TO THE PROVISIONS OF THIS SECTION SHALL BE THE PROP-
ERTY OF THE STATE AND SHALL BE PAID INTO THE GENERAL FUND OF THE STATE
TREASURY.
(E) THE COMMISSIONER SHALL PROMULGATE SUCH RULES AND REGULATIONS AS
MAY BE NECESSARY TO EFFECTUATE THE PROVISIONS OF THIS SECTION.
(F) EVIDENCE OF A REFUSAL TO SURRENDER A MOBILE TELEPHONE OR PORTABLE
ELECTRONIC DEVICE FOR FIELD TESTING SHALL BE ADMISSIBLE IN ANY TRIAL,
PROCEEDING OR HEARING BASED ON A VIOLATION OF THE PROVISIONS OF SECTION
TWELVE HUNDRED TWENTY-FIVE-C OR TWELVE HUNDRED TWENTY-FIVE-D OF THIS
ARTICLE BUT ONLY UPON A SHOWING THAT THE PERSON WAS GIVEN SUFFICIENT
WARNING, IN CLEAR AND UNEQUIVOCAL LANGUAGE, OF THE EFFECT OF SUCH
REFUSAL AND THAT THE PERSON PERSISTED IN THE REFUSAL.
(G) UPON THE REQUEST OF THE PERSON WHO SURRENDERED HIS OR HER MOBILE
TELEPHONE AND/OR PORTABLE ELECTRONIC DEVICE FOR FIELD TESTING THE
RESULTS OF SUCH TESTING SHALL BE MADE AVAILABLE TO SUCH PERSON.
4. (A) NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION THREE OF THIS
SECTION, NO PERSON WHO OPERATES A MOTOR VEHICLE IN THIS STATE WHILE
POSSESSING A MOBILE TELEPHONE OR PORTABLE ELECTRONIC DEVICE MAY REFUSE
TO SURRENDER SUCH MOBILE TELEPHONE OR PORTABLE ELECTRONIC DEVICE SOLELY
FOR THE PURPOSE OF FIELD TESTING WHEN A COURT ORDER FOR SUCH TESTING HAS
BEEN ISSUED IN ACCORDANCE WITH THE PROVISIONS OF THIS SUBDIVISION.
(B) UPON REFUSAL BY ANY PERSON TO SURRENDER HIS OR HER MOBILE TELE-
PHONE AND/OR PORTABLE ELECTRONIC DEVICE FOR THE PURPOSE OF FIELD TEST-
ING, THE TESTING SHALL NOT BE CONDUCTED UNLESS A POLICE OFFICER OR A
DISTRICT ATTORNEY, AS DEFINED IN SUBDIVISION THIRTY-TWO OF SECTION 1.20
OF THE CRIMINAL PROCEDURE LAW, REQUESTS AND OBTAINS A COURT ORDER TO
COMPEL A PERSON TO SURRENDER HIS OR HER MOBILE TELEPHONE OR PORTABLE
ELECTRONIC DEVICE FOR FIELD TESTING UPON PROOF THAT SUCH PERSON WAS THE
OPERATOR OF A MOTOR VEHICLE AND IN THE COURSE OF SUCH OPERATION, HE OR
SHE CAUSED SERIOUS PHYSICAL INJURY, AS DEFINED IN SUBDIVISION TEN OF
SECTION 10.00 OF THE PENAL LAW, TO OR THE DEATH OF ANOTHER PERSON.
(C)(1) AN APPLICATION FOR A COURT ORDER TO COMPEL SURRENDER OF A
MOBILE TELEPHONE OR PORTABLE ELECTRONIC DEVICE FOR FIELD TESTING, MAY BE
MADE TO ANY SUPREME COURT JUSTICE, COUNTY COURT JUDGE OR DISTRICT COURT
JUDGE IN THE JUDICIAL DISTRICT IN WHICH THE INCIDENT OCCURRED, OR IF THE
INCIDENT OCCURRED IN THE CITY OF NEW YORK BEFORE ANY SUPREME COURT
JUSTICE OR JUDGE OF THE CRIMINAL COURT OF THE CITY OF NEW YORK. SUCH
APPLICATION MAY BE COMMUNICATED BY TELEPHONE, RADIO OR OTHER MEANS OF
ELECTRONIC COMMUNICATION, OR IN PERSON.
(2) THE APPLICANT MUST PROVIDE IDENTIFICATION BY NAME AND TITLE, AND
MUST STATE THE PURPOSE OF THE COMMUNICATION. UPON BEING ADVISED THAT AN
APPLICATION FOR A COURT ORDER TO COMPEL SURRENDER OF A MOBILE TELEPHONE
AND/OR PORTABLE ELECTRONIC DEVICE SOLELY FOR THE PURPOSE OF FIELD TEST-
ING IS BEING MADE, THE COURT SHALL PLACE UNDER OATH THE APPLICANT AND
ANY OTHER PERSON PROVIDING INFORMATION IN SUPPORT OF THE APPLICATION AS
PROVIDED IN SUBPARAGRAPH THREE OF THIS PARAGRAPH. AFTER BEING SWORN THE
APPLICANT MUST STATE THAT THE PERSON FROM WHOM THE SURRENDER OF A MOBILE
TELEPHONE OR PORTABLE ELECTRONIC DEVICE WAS REQUESTED WAS THE OPERATOR
OF A MOTOR VEHICLE AND IN THE COURSE OF SUCH OPERATION, HE OR SHE CAUSED
SERIOUS PHYSICAL INJURY TO OR THE DEATH OF ANOTHER PERSON, AND SUCH
PERSON REFUSED TO SURRENDER HIS OR HER MOBILE TELEPHONE OR PORTABLE
A. 3955--B 7
ELECTRONIC DEVICE FOR FIELD TESTING. THE APPLICANT MUST MAKE SPECIFIC
ALLEGATIONS OF FACT TO SUPPORT SUCH STATEMENT. ANY PERSON PROPERLY IDEN-
TIFIED, MAY PRESENT SWORN ALLEGATIONS OF FACT IN SUPPORT OF THE APPLI-
CANT'S STATEMENT.
(3) UPON BEING ADVISED THAT AN ORAL APPLICATION FOR A COURT ORDER TO
COMPEL A PERSON TO SURRENDER HIS OR HER MOBILE TELEPHONE OR PORTABLE
ELECTRONIC DEVICE FOR FIELD TESTING IS BEING MADE, A JUDGE OR JUSTICE
SHALL PLACE UNDER OATH THE APPLICANT AND ANY OTHER PERSON PROVIDING
INFORMATION IN SUPPORT OF THE APPLICATION. SUCH OATH OR OATHS AND ALL OF
THE REMAINING COMMUNICATION MUST BE RECORDED, EITHER BY MEANS OF A VOICE
RECORDING DEVICE OR A STENOGRAPHIC RECORD MADE, THE JUDGE MUST HAVE THE
RECORD TRANSCRIBED, CERTIFY TO THE ACCURACY OF THE TRANSCRIPTION AND
FILE THE ORIGINAL RECORD AND TRANSCRIPTION WITH THE COURT WITHIN SEVEN-
TY-TWO HOURS OF THE ISSUANCE OF THE COURT ORDER. IF THE LONGHAND NOTES
ARE TAKEN, THE JUDGE SHALL SUBSCRIBE A COPY AND FILE IT WITH THE COURT
WITHIN TWENTY-FOUR HOURS OF THE ISSUANCE OF THE ORDER.
(4) IF THE COURT IS SATISFIED THAT THE REQUIREMENTS FOR THE ISSUANCE
OF A COURT ORDER PURSUANT TO THE PROVISIONS OF PARAGRAPH (B) OF THIS
SUBDIVISION HAVE BEEN MET, IT MAY GRANT THE APPLICATION AND ISSUE AN
ORDER REQUIRING THE PERSON TO SURRENDER HIS OR HER MOBILE TELEPHONE OR
PORTABLE ELECTRONIC DEVICE FOR THE PURPOSE OF FIELD TESTING. WHEN A
JUDGE OR JUSTICE DETERMINES TO ISSUE AN ORDER TO COMPEL SURRENDER OF A
MOBILE TELEPHONE OR PORTABLE ELECTRONIC DEVICE FOR THE PURPOSE OF FIELD
TESTING BASED ON AN ORAL APPLICATION, THE APPLICANT THEREFOR SHALL
PREPARE THE ORDER IN ACCORDANCE WITH THE INSTRUCTIONS OF THE JUDGE OR
JUSTICE. IN ALL CASES THE ORDER SHALL INCLUDE THE NAME OF THE ISSUING
JUDGE OR JUSTICE, THE NAME OF THE APPLICANT, AND THE DATE AND TIME IT
WAS ISSUED. IT MUST BE SIGNED BY THE JUDGE OR JUSTICE IF ISSUED IN
PERSON, OR BY THE APPLICANT IF ISSUED ORALLY.
(5) ANY FALSE STATEMENT BY AN APPLICANT OR ANY OTHER PERSON IN SUPPORT
OF AN APPLICATION FOR A COURT ORDER SHALL SUBJECT SUCH PERSON TO THE
OFFENSES FOR PERJURY SET FORTH IN ARTICLE TWO HUNDRED TEN OF THE PENAL
LAW.
(6) THE CHIEF ADMINISTRATOR OF THE COURTS SHALL ESTABLISH A SCHEDULE
TO PROVIDE THAT A SUFFICIENT NUMBER OF JUDGES OR JUSTICES WILL BE AVAIL-
ABLE IN EACH JUDICIAL DISTRICT TO HEAR ORAL APPLICATIONS FOR COURT
ORDERS AS PERMITTED BY THIS SECTION.
§ 7. Section 837 of the executive law is amended by adding a new
subdivision 22 to read as follows:
22. ACTING BY AND THROUGH THE COMMISSIONER, TO, JOINTLY WITH THE
COMMISSIONER OF MOTOR VEHICLES, PROMULGATE RULES AND REGULATIONS, AND
TAKE ANY OTHER ACTION NECESSARY TO IMPLEMENT THE PROVISIONS OF SECTION
TWELVE HUNDRED TWENTY-FIVE-E OF THE VEHICLE AND TRAFFIC LAW, RELATING TO
FIELD TESTING OF MOBILE TELEPHONES AND PORTABLE ELECTRONIC DEVICES. SUCH
ACTIONS SHALL INCLUDE THE TESTING AND DETERMINATION OF THE RELIABILITY
AND ACCURACY OF ELECTRONIC SCANNING DEVICES USED FOR SUCH FIELD TESTING.
THE COMMISSIONER AND COMMISSIONER OF MOTOR VEHICLES SHALL APPROVE ELEC-
TRONIC SCANNING DEVICES WHICH ARE RELIABLE AND ACCURATE FOR THE PURPOSE
OF CONDUCTING FIELD TESTING.
§ 8. This act shall take effect immediately, except that sections
four, five and six of this act shall take effect two years after this
act shall have become a law.