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Proposed Law Targets Accident Victims’ Cellphones

A USB device is attached to Cellebrite UFED Touch, a device for the data extraction from a mobile device such as mobile phone or smartphone. Photograph: Issei Kato/Reuters

A USB device is attached to Cellebrite UFED Touch, a device for the data extraction from a mobile device such as mobile phone or smartphone. Photograph: Issei Kato/Reuters

In an effort to combat distracted driving, New York State Senator Terrence Murphy and Assemblyman Felix Ortiz have put forth a bill that would empower police at the scene of a vehicle accident to use a textalyzer to search a cellphone or other portable electronic device to see if it was in use at the time of the crash. Proponents say the proposed law would operate much the same way that the current implied consent law requires drivers to submit to a chemical test to determine blood alcohol content. But there is an important distinction: the implied consent law for DUI only kicks in after an arrest.

The proposed law would allow an officer to search a cellphone after an accident, even when the officer does not have the slightest suspicion that a crime has been committed. Enacting implied consent for a search prior to an arrest and without probable cause raises a potential conflict with a citizen’s constitutional right to be free from illegal search and seizure.

The Fourth Amendment to the U.S. Constitution requires that a search be “reasonable” and requires “probable cause” to get a search warrant. Fourth Amendment jurisprudence allows for warrantless searches when there is probable cause plus an “exigency,” meaning urgent circumstances that excuse the officer for not taking the time to get a warrant. Exigent circumstances include a reasonable fear that a person may be harmed or evidence will be destroyed.

In the case of a DUI, the officer can make an arrest based on probable cause that the crime of driving under the influence has occurred. The warrantless chemical test can be deemed reasonable because of exigent circumstances: the dissipation of alcohol in the driver’s bloodstream is the naturally occurring destruction of evidence. The implied consent law, which treats any driver who operates a vehicle on public New York roadways as if he has consented to a chemical test after an arrest, then penalizes the arrested driver if he withdraws that consent by refusing to submit to a chemical test.

But the trigger for the search under Murphy and Ortiz’s bill is not a crime; it’s simply “an accident or collision involving damage to real or personal property, personal injury or death.” And are there exigent circumstances? Most cellphone providers maintain records for at least 18 months. Couldn’t the authorities get a warrant in all that time? Allowing a warrantless search based on slim-to-no exigency without probable cause, or even the lower standard of “reasonable suspicion,” certainly puts the law in conflict with a driver’s Fourth Amendment rights. The question is whether a quick electronic scan of a driver’s phone is reasonable enough in light of a traffic accident.

Barasch, McGarry, Salzman & Penson represents plaintiffs injured in auto accidents. If you or a loved one has suffered a serious personal injury, call 888.746.8212 or contact our firm online to schedule a free consultation.

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