NY State Senate Bill S2306B

Archive: Last Bill Status - In Senate Committee Finance Committee

Introduced
In Committee
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- Passed Senate
- Passed Assembly
Delivered to Governor
Signed/Vetoed by Governor

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Actions

view actions (8)

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
May 16, 2018	print number 2306b
May 16, 2018	amend and recommit to finance
Feb 06, 2018	reported and committed to finance
Jan 25, 2018	print number 2306a
Jan 25, 2018	amend and recommit to transportation
Jan 03, 2018	referred to transportation
Mar 21, 2017	reported and committed to finance
Jan 12, 2017	referred to transportation

Votes

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Feb 6, 2018 - Transportation committee Vote

S2306A

committee

Aye

Nay

Aye with Reservations

Absent

Excused

Abstained

Mar 21, 2017 - Transportation committee Vote

S2306

committee

Aye

Nay

Aye with Reservations

Absent

Excused

Abstained

Bill Amendments

Original

B (Active)

Original

B (Active)

Co-Sponsors

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S2306 - Details

See Assembly Version of this Bill:: A3955
Current Committee:: Senate Finance
Law Section:: Vehicle and Traffic Law
Laws Affected:: Amd §§215, 503 & 511, add §1225-e, V & T L; amd §837, Exec L
Versions Introduced in Other Legislative Sessions:: 2015-2016: S6325, A8613
2019-2020: S5392, A3201
2021-2022: S4259
2023-2024: S4023

S2306 - Summary

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.

S2306 - Sponsor Memo

 BILL NUMBER:  S2306

 TITLE OF BILL :  An act to amend the vehicle and traffic law and the
executive law, in relation to the field testing of mobile telephones
and portable electronic devices after a motor vehicle accident or
collision involving damage to real or personal property, personal
injury or death

 PURPOSE :

The purpose of this bill is to increase enforcement of existing
prohibitions on the use of mobile telephones and/or personal
electronic devices while driving through the creation of a field test
that law enforcement may conduct at the scene of the accident.

 SUMMARY OF PROVISIONS :

Section one provides the legislative intent.

Section two provides that this act shall be known as "Evan's law."

Section three amends section 215 of the vehicle and traffic law,
regarding rules and regulations of the Department of Motor Vehicles,
by adding to new subdivisions (d) and (e). Subdivision (d) requires
the commissioner, jointly with the commissioner of criminal justice
services, to promulgate rules and regulations necessary to implement

provisions of § 1225-e, relating to field testing of mobile telephones
and portable electronic devices. Subdivision (e) requires the
commissioner to conduct a public education campaign relating 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 the state. The campaign shall include information
pamphlets provided with each application for a learner's permit or
driver's license, and each renewal thereof.

Section four amends section 503 of the vehicle and traffic law,
regarding the period of validity of drivers' licenses, learners'
permits and applications, to state that if a driver's license is
revoked pursuant to the provisions of § 1225-e of the vehicle and
traffic law such driver must pay a fee of $100 for the issuance of a
driver's license.

Section five amends paragraph (a) of subdivision 2 of section 511 of
the vehicle and traffic law, regarding operation while license or
privilege is suspended or revoked; aggravated unlicensed operation, to
add a new paragraph (v) which states that a person is guilty of
aggravated unlicensed operation of a motor vehicle in the second
degree when such person commits the offense of aggravated unlicensed
operation of a motor vehicle in the third degree, and the suspension
and revocation is based upon refusal to surrender a mobile telephone
or portable electronic device for field testing pursuant to § 1225-e
of this chapter.

Section six amends the vehicle and traffic law by adding a new section
1225-e regarding field testing of mobile telephones and portable
electronic devices. Subdivision 1 defines the following terms:


*Paragraph (a) defines "field testing" to mean the use of an
electronic scanning device to determine whether or not the operator of
a motor vehicle was using a mobile telephone or a portable electronic
device in violation of § 1225-c (use of mobile telephones) or § 1225-
d (use of portable electronic devices) of this article. Provided that
the use of an electronic scanning device will be limited to
determining whether the operator of a motor vehicle was using a mobile
telephone or portable electronic device at or near the time of the
accident or collision which provides the grounds for such testing. No
such electronic scan shall include the content or origin of any
communication, game conducted, image or electronic data viewed on a
mobile telephone or a portable electronic device.
*Paragraph (b) defines "mobile telephone"
*Paragraph (c) defines "portable electronic device"
*Paragraph (d) defines "using"


Subdivision 2 of section six establishes that every person operating a
motor vehicle that has been involved in an accident or collision
involving damage to real or personal property, personal injury or
death, and who has in his or her possession at or near the time of
such accident or collision a mobile telephone or personal electronic
device must submit, at the request of the police officer, his or her
mobile telephone or personal electronic device to the police officer
solely for the purpose of field testing such device.

Paragraph (a) of subdivision 3 of section six establishes that every
person who operates a motor vehicle in the state shall be deemed to
have given consent to field testing of his or her mobile telephone
and/or personal electronic device for the purpose of determining the
use thereof while operating a motor vehicle. Furthermore, paragraph
(b) subparagraph (1) establishes that refusal to submit a mobile
telephone or personal electronic device to the field testing will
result in the revocation of the driver's license or permit. The police
officer will inform the driver that the person's license or permit to
drive and any non-resident operating privilege shall be immediately
suspended and subsequently revoked should the driver refuse to
acquiesce to such field test. Should the driver refuse such field
test, the test will not be conducted and a written report of such
refusal will be immediately made by the police officer before whom the
refusal was made. Subparagraph (2) establishes that the report of the
police officer shall set forth the grounds to believe that the person
was in use of his or her mobile telephone or personal electronic
device at the time of the accident, that the person refused the field
test and that no field test was performed. The report must be
transmitted to the commissioner by the police officer within 48 hours
of the refusal. Subparagraph (3) establishes that a person charged
with a violation of § 1225-c or § 1225-d, upon the basis of such
written report, will temporarily have his or her license or permit
suspended by the court without notice pending the determination of a
hearing. Subparagraph (4) states that the court or commissioner shall
provide such person with a scheduled hearing date, a waiver form and
such other information as may be required by the commissioner.
Paragraph (c) establishes that 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. Should the department fail to provide for such hearing 15
days after the receipt of a report of refusal, the license or permit
shall be reinstated pending a hearing.  Paragraph (d) subparagraph (1)
establishes that any license revoked under this subdivision shall not
be restored for at least one year after such revocation, provided
however that where a person has had a prior license revocation
resulting from refusal to surrender to field testing within five years
immediately preceding the date of such revocation, such license will
not be restored for at least eighteen months after the revocation.
Subparagraph (2) of paragraph (d) states that any person whose license
has been revoked pursuant to the provisions of this section shall also
be liable for a civil penalty of $500, except where the revocation is
a second or subsequent revocation within a five-year period the civil
penalty shall be $750.  Paragraph (t) states that evidence of a
refusal to submit to field testing shall be admissible in any trial,
proceeding or hearing but only upon a showing that the person was
given sufficient warning, in clear and unequivocal language of the
effect of such refusal, and the person persisted in the refusal.
Paragraph (g) states that upon request the person who surrendered his
or her mobile telephone and/or personal electronic device for field
testing the results shall be made available to such person.

Subdivision 4 of section six states that no person may refuse a field
test when a court order for such testing has been issued, and details
the proper procedures for an application for a court order to compel
surrender of a mobile telephone and/or portable electronic device
solely for the purpose of field testing.

Section seven amends section 837 of the executive law, regarding the
functions, powers and duties of the division of criminal justice
services, to add a new subdivision 21 to empower the commissioner to
promulgate rules and regulations necessary to implement the provisions
of § 1225-e of the vehicle and traffic law.

Section eight establishes the effective date.

 JUSTIFICATION :

Evan Lieberman was a nineteen-year-old college freshman when he was
tragically killed in a motor vehicle accident caused by a distracted
driver. The cause of the accident however, was only discovered after
Evan's family subpoenaed the driver's cell phone records, since police
rarely examine mobile devices following an accident. In this case, the
phone was not even removed from the car, leaving essential evidence
sitting in a junk yard for weeks following his death. Evan's tragic
story sheds much needed light on the inability of law enforcement to
adequately enforce the 2001 ban placed on handheld mobile device use
while driving.

Distracted driving is the leading cause of accidents among young
drivers, and has led to a significant increase in overall accidents
among drivers of all ages. The Centers for Disease Control and
Prevention reported that every day in this country nine people are
killed, and more than 1,153 are injured, in accidents involving a
distracted driver. This roughly equates to one in five accidents per
year caused by distracted driving, and the problem only continues to
escalate. The cost associated with distracted driving is astronomical.
The National Highway Traffic Safety Administration estimates that
crashes caused by distracted driving cost the United States
approximately $175 billion per year, this is roughly $148 per every
American. With sixty-seven percent of drivers reportedly still using
their cell phones despite knowledge of the risk to themselves and
other drivers, it is imperative that we tackle this issue before it
claims more innocent lives.

This bill provides law enforcement with a long overdue mechanism to
evaluate cell phone use at the scene of an accident. It authorizes the
use of available technology, which directly connects to the mobile
device to determine whether it was in use at the time of the accident
or immediately prior to its occurrence. This bill embodies the type of
legislation called for by Justice Alito in the recent Supreme Court
case, Riley v. California, where the court held that a warrant is
required to search the contents of a cell phone incident to an arrest.
In his concurring opinion, Justice Alito stated that Congress or state
legislatures may "after assessing the legitimate needs of law
enforcement and the privacy interests of cell phone owners, enact
legislation that draws reasonable distinctions based on categories of
information or perhaps other variables." This bill accomplishes just
that. The equipment only has the capacity to determine whether the
phone was in use at the time of the accident, and will not invade
personal privacy by evaluating the personal content contained on the
device.


Countless authorities have found that distracted driving is as
dangerous, if not more so than driving while intoxicated. However,
there is a great disparity in how these offenses are handled and
punished under the law. It is for the safety and welfare of every New
York resident to establish parity between these two offenses, and
change the public perception around cell phone use while driving.
Only by passing Evan's law can we hope to end the senseless loss of
life that continues to plague our nation.

 LEGISLATIVE HISTORY :

2016: S6325-A, reported from Transportation and committed to Finance

 FISCAL IMPLICATIONS :

None noted.

 EFFECTIVE DATE :
This act shall take effect immediately, except that sections three,
four and five of this act shall take effect two years after this act
shall have become a law.

S2306 - Bill Text download pdf


                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  2306

                       2017-2018 Regular Sessions

                            I N  S E N A T E

                            January 12, 2017
                               ___________

Introduced  by  Sens.  MURPHY,  AVELLA,  RANZENHOFER  --  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:

  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.
  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.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02344-01-7

S. 2306                             2

  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.
  (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
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

S. 2306                             3

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-
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,

S. 2306                             4

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
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

S. 2306                             5

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
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-

S. 2306                             6

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
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

S. 2306                             7

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 21 to read as follows:
  21.  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.

Co-Sponsors

view additional co-sponsors

S2306A - Details

See Assembly Version of this Bill:: A3955
Current Committee:: Senate Finance
Law Section:: Vehicle and Traffic Law
Laws Affected:: Amd §§215, 503 & 511, add §1225-e, V & T L; amd §837, Exec L
Versions Introduced in Other Legislative Sessions:: 2015-2016: S6325, A8613
2019-2020: S5392, A3201
2021-2022: S4259
2023-2024: S4023

S2306A - Summary

S2306A - Sponsor Memo

 
BILL NUMBER: S2306A

SPONSOR: MURPHY
 
TITLE OF BILL:

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

 
PURPOSE:

The purpose of this bill is to increase enforcement of existing prohibi-
tions on the use of mobile telephones and/or personal electronic devices
while driving through the creation of a field test that law enforcement
may conduct at the scene of the accident.

 
SUMMARY OF PROVISIONS:

Section one provides the legislative intent.

Section two provides that this act shall be known as "Evan's law."

Section three amends section 215 of the vehicle and traffic law, regard-
ing rules and regulations of the Department of Motor Vehicles, by adding
to new subdivisions (d) and (e). Subdivision (d) requires the commis-
sioner, jointly with the commissioner of criminal justice services, to
promulgate rules and regulations necessary to implement provisions of §
1225-e, relating to field testing of mobile telephones and portable
electronic devices. Subdivision (e) requires the commissioner to conduct
a public education campaign relating 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 the state. The
campaign shall include information pamphlets provided with each applica-
tion for a learner's permit or driver's license, and each renewal there-
of.

Section four amends section 503 of the vehicle and traffic law, regard-
ing the period of validity of drivers' licenses, learners' permits and
applications, to state that if a driver's license is revoked pursuant to
the provisions of § 1225-e of the vehicle and traffic law such driver
must pay a fee of $100 for the issuance of a driver's license.

Section five amends paragraph (a) of subdivision 2 of section 511 of the
vehicle and traffic law, regarding operation while license or privilege
is suspended or revoked; aggravated unlicensed operation, to add a new
paragraph (v) which states that a person is guilty of aggravated unli-
censed operation of a motor vehicle in the second degree when such
person commits the offense of aggravated unlicensed operation of a motor
vehicle in the third degree, and the suspension and revocation is based
upon refusal to surrender a mobile telephone or portable electronic
device for field testing pursuant to § 1225-e of this chapter.

Section six amends the vehicle and traffic law by adding a new section
1225-e regarding field testing of mobile telephones and portable elec-
tronic devices. Subdivision 1 defines the following terms:

- Paragraph (a) defines "field testing" to mean the use of an electronic
scanning device to determine whether or not the operator of a motor
vehicle was using a mobile telephone or a portable electronic device in
violation of § 1225-c (use of mobile telephones) or § 1225- d (use of
portable electronic devices) of this article.  Provided that the use of
an electronic scanning device will be limited to determining whether the
operator of a motor vehicle was using a mobile telephone or portable
electronic device at or near the time of the accident or collision which
provides the grounds for such testing. No such electronic scan shall
include the content or origin of any communication, game conducted,
image or electronic data viewed on a mobile telephone or a portable
electronic device.
- Paragraph (b) defines "mobile telephone"
- Paragraph (c) defines "portable electronic device"
- Paragraph (d) defines "using"

Subdivision 2 of section six establishes that every person operating a
motor vehicle that has been involved in an accident or collision involv-
ing damage to real or personal property, personal injury or death, and
who has in his or her possession at or near the time of such accident or
collision a mobile telephone or personal electronic device must submit,
at the request of the police officer, his or her mobile telephone or
personal electronic device to the police officer solely for the purpose
of field testing such device.

Paragraph (a) of subdivision 3 of section six establishes that every
person who operates a motor vehicle in the state shall be deemed to have
given consent to field testing of his or her mobile telephone and/or
personal electronic device for the purpose of determining the use there-
of while operating a motor vehicle. Furthermore, paragraph (b) subpara-
graph (1) establishes that refusal to submit a mobile telephone or
personal electronic device to the field testing will result in the revo-
cation of the driver's license or permit. The police officer will inform
the driver that the person's license or permit to drive and any non-re-
sident operating privilege shall be immediately suspended and subse-
quently revoked should the driver refuse to acquiesce to such field
test. Should the driver refuse such field test, the test will not be
conducted and a written report of such refusal will be immediately made
by the police officer before whom the refusal was made. Subparagraph (2)
establishes that the report of the police officer shall set forth the
grounds to believe that the person was in use of his or her mobile tele-
phone or personal electronic device at the time of the accident, that
the person refused the field test and that no field test was performed.
The report must be transmitted to the commissioner by the police officer
within 48 hours of the refusal. Subparagraph (3) establishes that a
person charged with a violation of § 1225-c or § 1225-d, upon the basis
of such written report, will temporarily have his or her license or
permit suspended by the court without notice pending the determination
of a hearing. Subparagraph (4) states that the court or commissioner
shall provide such person with a scheduled hearing date, a waiver form
and such other information as may be required by the commissioner. Para-
graph (c) establishes that 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. Should the
department fail to provide for such hearing 15 days after the receipt of
a report of refusal, the license or permit shall be reinstated pending a
hearing.  Paragraph (d) subparagraph (1) establishes that any license
revoked under this subdivision shall not be restored for at least one
year after such revocation, provided however that where a person has had
a prior license revocation resulting from refusal to surrender to field
testing within five years immediately preceding the date of such revoca-
tion, such license will not be restored for at least eighteen months
after the revocation. Subparagraph (2) of paragraph (d) states that any
person whose license has been revoked pursuant to the provisions of this
section shall also be liable for a civil penalty of $500, except where
the revocation is a second or subsequent revocation within a five-year
period the civil penalty shall be $750.  Paragraph (f) states that
evidence of a refusal to submit to field testing shall be admissible in
any trial, proceeding or hearing but only upon a showing that the person
was given sufficient warning, in clear and unequivocal language of the
effect of such refusal, and the person persisted in the refusal. Para-
graph (g) states that upon request the person who surrendered his or her
mobile telephone and/or personal electronic device for field testing the
results shall be made available to such person.

Subdivision 4 of section six states that no person may refuse a field
test when a court order for such testing has been issued, and details
the proper procedures for an application for a court order to compel
surrender of a mobile telephone and/or portable electronic device solely
for the purpose of field testing.

Section seven amends section 837 of the executive law, regarding the
functions, powers and duties of the division of criminal justice
services, to add a new subdivision 21 to empower the commissioner to
promulgate rules and regulations necessary to implement the provisions
of § 1225-e of the vehicle and traffic law.

Section eight establishes the effective date.

 
JUSTIFICATION:

Evan Lieberman was a nineteen-year-old college freshman when he was
tragically killed in a motor vehicle accident caused by a distracted
driver. The cause of the accident however, was only discovered after
Evan's family subpoenaed the driver's cell phone records, since police
rarely examine mobile devices following an accident. In this case, the
phone was not even removed from the car, leaving essential evidence
sitting in a junk yard for weeks following his death. Evan's tragic
story sheds much needed light on the inability of law enforcement to
adequately enforce the 2001 ban placed on handheld mobile device use
while driving.

Distracted driving is the leading cause of accidents among young driv-
ers, and has led to a significant increase in overall accidents among
drivers of all ages. The Centers for Disease Control and Prevention
reported that every day in this country nine people are killed, and more
than 1,153 are injured, in accidents involving a distracted driver. This
roughly equates to one in five accidents per year caused by distracted
driving, and the problem only continues to escalate. The cost associated
with distracted driving is astronomical. The National Highway Traffic
Safety Administration estimates that crashes caused by distracted driv-
ing cost the United States approximately $175 billion per year, this is
roughly $148 per every American. With sixty-seven percent of drivers
reportedly still using their cell phones despite knowledge of the risk
to themselves and other drivers, it is imperative that we tackle this
issue before it claims more innocent lives.


This bill provides law enforcement with a long overdue mechanism to
evaluate cell phone use at the scene of an accident. It authorizes the
use of available technology, which directly connects to the mobile
device to determine whether it was in use at the time of the accident or
immediately prior to its occurrence. This bill embodies the type of
legislation called for by Justice Alito in the recent Supreme Court
case, Riley v. California, where the court held that a warrant is
required to search the contents of a cell phone incident to an arrest.
In his concurring opinion, Justice Alito stated that Congress or state
legislatures may "after assessing the legitimate needs of law enforce-
ment and the privacy interests of cell phone owners, enact legislation
that draws reasonable distinctions based on categories of information or
perhaps other variables." This bill accomplishes just that. The equip-
ment only has the capacity to determine whether the phone was in use at
the time of the accident, and will not invade personal privacy by evalu-
ating the personal content contained on the device.

Countless authorities have found that distracted driving is as danger-
ous, if not more so than driving while intoxicated. However, there is a
great disparity in how these offenses are handled and punished under the
law. It is for the safety and welfare of every New York resident to
establish parity between these two offenses, and change the public
perception around cell phone use while driving.  Only by passing Evan's
law can we hope to end the senseless loss of life that continues to
plague our nation.

 
LEGISLATIVE HISTORY:

2016: S6325-A

 
FISCAL IMPLICATIONS:

None noted.

 
EFFECTIVE DATE:
This act shall take effect immediately, except that sections three, four
and five of this act shall take effect two years after this act shall
have become a law.

S2306A - Bill Text download pdf


                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 2306--A

                       2017-2018 Regular Sessions

                            I N  S E N A T E

                            January 12, 2017
                               ___________

Introduced  by  Sens. MURPHY, AVELLA, BONACIC, GRIFFO, JACOBS, KAMINSKY,
  KENNEDY, KLEIN, PHILLIPS, RANZENHOFER, ROBACH, VALESKY --  read  twice
  and ordered printed, and when printed to be committed to the Committee
  on Transportation -- recommitted to the Committee on Transportation in
  accordance  with  Senate  Rule 6, sec. 8 -- committee discharged, bill
  amended, ordered reprinted as amended and recommitted to said  commit-
  tee

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.
                                                           LBD02344-02-8

S. 2306--A                          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.
  (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
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

S. 2306--A                          3

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-
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

S. 2306--A                          4

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
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

S. 2306--A                          5

(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
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

S. 2306--A                          6

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
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.

S. 2306--A                          7

  (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.

Co-Sponsors

view additional co-sponsors

S2306B (ACTIVE) - Details

See Assembly Version of this Bill:: A3955
Current Committee:: Senate Finance
Law Section:: Vehicle and Traffic Law
Laws Affected:: Amd §§215, 503 & 511, add §1225-e, V & T L; amd §837, Exec L
Versions Introduced in Other Legislative Sessions:: 2015-2016: S6325, A8613
2019-2020: S5392, A3201
2021-2022: S4259
2023-2024: S4023

S2306B (ACTIVE) - Summary

S2306B (ACTIVE) - Sponsor Memo

 
BILL NUMBER: S2306B

SPONSOR: MURPHY
 
TITLE OF BILL:  An act to amend the vehicle and traffic law and the
executive law, in relation to the field testing of mobile telephones and
portable electronic devices after a motor vehicle accident or collision
involving damage to real or personal property, personal injury or death

 
PURPOSE:

The purpose of this bill is to increase enforcement of existing prohibi-
tions on the use of mobile telephones and/or personal electronic devices
while driving through the creation of a field test that law enforcement
may conduct at the scene of the accident.

 
SUMMARY OF PROVISIONS:

Section 1 - Sets forth the Legislative intent.

Section 2 - Sets for the short title to be known as "Evan's Law."

Section 3 - Section 215 of the Vehicle and Traffic Law is amended by
adding two new subdivisions requiring the Commissioner and Commissioner
of Justice Services to promulgate and implement any rules, regulations,
procedures or public education campaigns to create an opt-in program for
field testing mobile telephones and or portable electronic devices by
police at the site of accidents.

Section 4 - Section four amends section 503 of the Vehicle and Traffic
Law to state that if a person has their license revoked under provisions
of Section 1225-e of the Vehicle and Traffic Law such driver must pay a
fee of $100 for the issuance of a driver's license.

Section 5 is amended to create a new subparagraph (v) of paragraph (a)
of subdivision 2 of section 511 of the Vehicle and Traffic Law to
include the suspension or revocation is based upon refusal to surrender
a mobile telephone or portable electronic device for field testing
pursuant to section 1225-e of this chapter.

Section 6 - The Vehicle and Traffic Law is amended to create definitions
for terms to be used in this new section 1225-e and rules and procedures
to be followed regarding the field testing of mobile telephones and
portable electronic devices with an electronic scanning device by police
at the scene of an accident.

Section 7 - Section 837 of the Executive Law is amended by adding a new
subdivision 22 to mandate that any rules or regulations needed to be
promulgated related to the new section 1225-e will be established by the
Commissioner along with the Commissioner of Motor Vehicles including the
approval of reliable and accurate electronic scanning devices.

Section 8 - Sets forth the effective date.

 
JUSTIFICATION:

Distracted driving is deadly. Nearly 20,000 people were killed in cras-
hes involving distracted drivers from 2011 through 2016 (the most recent
year available), according to National Highway Traffic Safety Adminis-
tration (NHTSA) data. In 2011, Evan Lieberman was one of those victims.
The 19-year-old college freshman was a backseat passenger of his
friend's vehicle when it was involved in a head-on crash. The driver, it
was later discovered, was texting while driving. Evan's parents obtained
the driver's cellphone records through a civil suit filed against him.

While New York State has a distracted driving law that bans using a
handheld electronic mobile device while driving, there is no protocol
for law enforcement to determine whether a driver caused a crash because
he or she was using their phone. This makes it difficult for law
enforcement to enforce the law unless they see the driver actively using
a mobile device or they ask the driver and get a confession. With
NHTSA's estimate of 481,000 U.S. drivers using handheld phone at any
moment during the day, law enforcement officials need a better way to
enforce distracted driving laws.

This bill would allow local police departments to field test electronic
scanning devices to determine whether the operator of a motor vehicle
was using a mobile telephone or a portable electronic device in
violation of the Vehicle and Traffic law. Participation in field testing
of mobile telephones and portable electronic devices using an electronic
scanning device shall be optional for police departments.

 
LEGISLATIVE HISTORY:

New bill

 
FISCAL IMPLICATIONS:

To be determined.

 
EFFECTIVE DATE:
This act shall take effect immediately, except that sections three, four
and five of this act shall take effect two years after this act shall
have become a law.

S2306B (ACTIVE) - Bill Text download pdf


                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 2306--B

                       2017-2018 Regular Sessions

                            I N  S E N A T E

                            January 12, 2017
                               ___________

Introduced  by  Sens.  MURPHY, BONACIC, BOYLE, GRIFFO, JACOBS, KAMINSKY,
  KENNEDY, KLEIN,  MARCHIONE,  PHILLIPS,  RANZENHOFER,  ROBACH,  SAVINO,
  VALESKY  --  read  twice  and  ordered printed, and when printed to be
  committed to the Committee on Transportation  --  recommitted  to  the
  Committee  on  Transportation in accordance with Senate Rule 6, sec. 8
  -- committee discharged, bill amended, ordered  reprinted  as  amended
  and  recommitted  to  said  committee  -- reported favorably from said
  committee and committed to  the  Committee  on  Finance  --  committee
  discharged, bill amended, 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-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.

                                                           LBD02344-04-8

S. 2306--B                          2

ing that the problem has not only gotten worse,  but  is  still  greatly
misunderstood.
  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

S. 2306--B                          3

basis  for  the revocation is a finding of driving after having consumed
alcohol  pursuant  to  the  provisions   of   section   eleven   hundred
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,

S. 2306--B                          4

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-
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-

S. 2306--B                          5

TAL MAY NOT BE WAIVED EVEN WITH THE CONSENT OF ALL THE  PARTIES.    SUCH
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

S. 2306--B                          6

THE  AMOUNT OF FIVE HUNDRED DOLLARS, EXCEPT THAT IF SUCH REVOCATION IS A
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

S. 2306--B                          7

PERSON  REFUSED  TO  SURRENDER  HIS  OR HER MOBILE TELEPHONE OR PORTABLE
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.

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The New York State Senate

senate Bill S2306B

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Archive: Last Bill Status - In Senate Committee Finance Committee

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Feb 6, 2018 - Transportation committee Vote

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Mar 21, 2017 - Transportation committee Vote

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senate Bill S2306B

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Sponsored By

Archive: Last Bill Status - In Senate Committee Finance Committee

Your Voice

Actions

Votes

Feb 6, 2018 - Transportation committee Vote

Committee Vote: Feb 6, 2018

Mar 21, 2017 - Transportation committee Vote

Committee Vote: Mar 21, 2017

Bill Amendments

Co-Sponsors

S2306 - Details

S2306 - Summary

S2306 - Sponsor Memo

S2306 - Bill Text download pdf

Co-Sponsors

S2306A - Details

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S2306B (ACTIVE) - Details

S2306B (ACTIVE) - Summary

S2306B (ACTIVE) - Sponsor Memo

S2306B (ACTIVE) - Bill Text download pdf

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