New York could become the first state in the country to legalize the use of “textalyzers” in order to curtail distracted driving. Similarly to how a breathalyzer detects if someone has been driving under the influence of alcohol, a textalyzer would be able to detect if a person was using their cell phone while driving. Constitutional attorney Barry Covert spoke to WGRZ about the legal implications of such a device and whether its use could be unconstitutional. The full story is available on the WGRZ website.
Could be unconstitutional
A bill to legalize the textalyzer could pass in the New York State Legislature by the end of this session next month. The bill would allow police officers to seize the phones of all drivers involved in an accident and connect them to the textalyzer in order to analyze their use. Refusal to hand over your phone could result in losing your driver’s license. Mr. Covert told WGRZ that there is the potential for controversy here. “You cannot limit the technology and make sure you preserve individuals’ confidences and their privacy,” he explained.
“It is going to be held to be, in my estimation, unconstitutional for a police officer to show up at an accident and, all of a sudden, demand from everybody their phones,” Mr. Covert said. He explained that the officer has no proof that the driver has violated any laws and that they do not need any evidence that you were under the influence of alcohol or drugs. “I think that’s very invasive of individual rights and, under the Fourth Amendment—the federal Fourth Amendment and under the state equivalent amendments under our State Constitution—will not be upheld,” he told WGRZ.
Difference between breathalyzer and textalyzer
Mr. Covert told WGRZ that there is a “grave difference” between the case for a breathalyzer in a suspected DWI and the case for a textalyzer in the case of suspected distracted driving. When asked to elaborate, Mr. Covert explained that “in order for the officer to require you to take a breathalyzer, that officer has to approach you, have reasonable cause to believe that you were driving the vehicle and then, through indicia of alcohol consumption, believe that you were under the influence of alcohol.” This, he says, is in contrast to the proposed textalyzer legislation, wherein the officer “shows up, has no indicia that anyone did anything wrong, and demands everyone’s phones.”
Striking a balance
When asked about striking a balance between doing something to prevent distracted driving and preserving constitutional rights, Mr. Covert said, “I believe that this legislation, as noble a cause as it is because distracted driving is incredible dangerous, is too burdensome on individual freedoms and rights.” He went on to say that a more “reasonable approach” would be for the police officer to note the drivers’ phone numbers and subpoena the records from the carrier.
About Barry N. Covert
Mr. Covert is a senior partner in Lipsitz Green Scime Cambria’s Criminal Defense Trials and Appeals Practice Area. He is known for his aggressive representation of clients in the areas of New York State and federal criminal trials and appeals; driving while intoxicated; constitutional law, including First Amendment, civil rights actions, and federal False Claims Act; defending against allegations of scientific misconduct and fraud, research misconduct and fraud, plagiarism, and fabrication of evidence; and professional licensing defense. Mr. Covert frequently provides legal analysis for WGRZ and other media outlets.
