Drunk driving has long been the subject of criminal laws in every state, and for understandable reasons: the negative effect of alcohol on driver judgment, reaction times, alertness, motor skills and more often lead to tragic and entirely unavoidable consequences for the drivers themselves, their passengers, other motorists and pedestrians. A logical outgrowth of anti-drunk driving laws has been to extend them to being under the influence of drugs other than alcohol. Now, a move is underway to increase the penalties common to drunk driving to yet another dangerous activity behind the wheel: texting.
Oklahoma already has a texting while driving law, which became effective on November 1, 2015. The law makes texting while driving subject to a fine of up to $100 upon conviction. It may be too early to know whether the law is an effective deterrent to texting and driving, but in New York opinion is building among state legislators that texting is a serious enough problem to warrant being treated more like drunk driving instead of a simple traffic violation. If these legislators have their way, their state may be the first to make use of a new device designed to find out whether a driver was texting just before getting into an accident: the “textalyzer.”
What’s a Textalyzer?
You may already know about devices that police use to measure the amount of alcohol in your blood or your breath. The breathalyzer measures alcohol content when you blow into it, and its data can be used as evidence against you in a DUI prosecution. The concept behind the textalyzer is conceptually the same, only instead of detecting recent alcohol consumption it purports to detect recent texting activity on your smart phone.
What about my privacy rights? Won’t the textalyzer violate them?
We wrote recently in a different blog post about legal issues connected to police collection of smart phone data through the use of “Stingray” devices, which mimic cell phone towers to generate location information. These have aroused enough concern about violations to privacy expectations protected by the Fourth Amendment to the US Constitution that Federal law enforcement policy currently requires obtaining a search warrant before they can be used. The warrantless seizure of your phone after you get into a car accident so that it can be connected to a textalyzer is potentially even more intrusive, especially if it collects the contents of your messages (including contact phone numbers, photographs, and other sensitive information).
Proponents of textalyzer usage counter this concern in two ways: first, they suggest that a search warrant would not necessarily be needed if the textalyzer use falls under the “implied consent” justification that would lead to your license being suspended if you refuse to submit to a blood or alcohol test. Second, they claim that the content of your texts can be kept private unless and until a search warrant can be obtained, such as to determine whether the texting activity was by “hands-free” means or if you were pecking away at your phone when the collision took place.
When am I going to see textalyzers being used in Oklahoma?
Textalyzer technology is cutting-edge, and presently only New York is contemplating its use. It may be some time, if ever, before you encounter a police officer in this state telling you to hand over your smart phone so he can hook it up to a textalyzer — and threatening to seize your driver’s license if you don’t comply (Oklahoma was one of the last states to pass a law banning texting while driving, and even then the penalty is relatively minor).
That being said, if textalyzers catch on in one state, that can be a harbinger of things to come in other states as well; conceivably in the not-so-distant future you may be hearing more about these devices, and may even encounter one if you are pulled over for suspected distracted driving in another state. In the meantime, we can only wait and see whether New York actually passes into law the authority of police to add one more piece of equipment to their inventory of ways to collect evidence against you if you are pulled over.
If you or a loved one has been charged with a criminal charge, contact the criminal defense lawyers at the Hunsucker Legal Group for your free consultation. Call 405-231-5600 for more information and to set up a time.