One of our Law Clerks, Brandon Hellwig, from our Syracuse office, takes a look into the new  “Textalyzer” issues.

Mobile devices such as phones, tablets, and lap-tops have become the new focus of law enforcement. State and federal law enforcement agencies are arguing, in an age where increasing amounts of information are being stored on mobile devices, that law enforcement needs access to these devices, because often the devices hold crucial evidence that is not otherwise available. Most recently this argument was illustrated in the legal battle between Apple and the Federal Bureau of Investigation. The debate centered on whether Apple could be legally compelled to mine data from one of its own phones.[1] This debate called into question how much authority the government has, and how that authority relates to a citizen’s rights to privacy (4th Amendment) as well as the prohibition against self-incrimination (5th Amendment).

Now it seems that a similar debate is unfolding in the New York State Legislature. Both the New York Senate and Assembly are currently debating a proposed piece of legislation titled “Evan’s Law”. The law is named in honor of Evan Lieberman, a 19-year old who was killed in 2011 by a driver distracted by a mobile device. If enacted, the law would essentially require all drivers involved in an accident or collision to surrender their mobile devices to police to be scanned in order to determine if the device was in use at the time of the incident.[2]

Evan’s Law Overview

As mentioned above, the proposed legislation, or Evan’s law, was inspired by the death of a young man at the hands of a distracted driver. The Legislature explains that the law is necessary because “the use of mobile telephones and/or personal electronic devices has drastically increased the prevalence of distracted driving… this destructive behavior endangers the lives of every driver and passenger traveling on New York State roadways”[3].

Evan’s Law Modeled After Existing DWI Law

When developing the procedure and substance for Evan’s Law, the Legislature relied heavily on the already existing provisions of the Vehicle and Traffic Law regarding DWI’s and Breath Testing. The Legislature explained 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 texting 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.”[4]

Basically, the Legislature has assumed that a driver who texts is just as impaired as a driver who is drunk. As a result, just as a driver who drinks is deemed to have implicitly consented to a chemical breath test, the “breathalyzer”, under the proposed law a driver who texts or otherwise uses a mobile device is deemed to have implicitly consented to a scan of their phone or mobile device, by a device otherwise known as the “textalyzer”.

Provisions of Evan’s Law

The most notable provision of Evan’s law modifies existing the Vehicle and Traffic Law by adding a section, §1225-E. Vehicle and Traffic Law §1225-E relates to already existing provisions §§ 1225-C, and 1225-D, which make it a violation to speak on a mobile phone or use a mobile device while driving. The newly proposed section establishes[5]:

  • Any person driving a vehicle in New York State is deemed to have given implied consent to field testing of their mobile telephone and/or mobile electronic device for the purpose of determining whether or not the device was being used during operation of the vehicle;
  • Such field test will be conducted by police after a person has operated a vehicle involved in an accident or collision that resulted in damage to real or personal property, personal injury, or death;
  • Should a driver refuse to submit their mobile telephone and/or mobile electronic device for field testing, their driver’s license will be immediately suspended, and following a hearing, could be revoked for up to one year;
  • Should a driver refuse to submit their mobile telephone and/or mobile electronic device for field testing, they will also be subject to a $500 civil penalty;

Ultimately, Evan’s Law is designed not only to punish people for violating Vehicle and Traffic Law §§ 1225-C, and 1225-D (texting, talking, or otherwise using a mobile electronic device while driving), but also to provide evidence leading to the imposition of more serious charges, or civil liability. For example, in an accident resulting in property damage, personal injury, or death, should a driver be found, via the field testing, to have been using a mobile electronic device, then it is likely that driver is both civilly and criminally negligent. Should a driver be found civilly and/or criminally negligent as a result of using a mobile electronic device while driving, then that driver could be subject to civil law suits, and criminal charges including Criminally Negligent Homicide.

The “Textalyzer”

The most controversial portion of the proposed Evan’s Law is the field test that will determine whether or not a driver was in fact using a mobile electronic device while driving. As mentioned above, the premise of the field test is based on the same principals as testing someone’s breath for the presence of alcohol to determine if they are guilty of DWI. Thus it is likely, should the law be enacted, that attorneys will challenge the reliability and the constitutionality of the “textalyzer” in the same way they challenge the chemical breath test or “breathalyzer”.

Pursuant to the 4th Amendment to the United States Constitution, individuals have the right to be secure in their persons, papers, houses, and effects against unreasonable searches and seizures. What this means is that the police need a warrant in order to search and seize someone’s phone or mobile device. Evan’s Law seeks to get around the 4th Amendment warrant requirement by limiting the purpose behind field testing of mobile electronic devices to only determining whether or not the device was being used while driving. Thus, according to the proposed legislation, substantive data on the devices would not be viewed by law enforcement.

The technology needed to enact the “textalyzer” already exists and is in use today. It’s official name is the “UFED Field Series” and it is manufactured by an Israeli company called Cellebrite.[6] What is disturbing is that although New York State seeks to limit the field test to only determining whether the device was in use during operation of a vehicle, the UFED as manufactured by Cellebrite has the capability to actually extract all sorts of data from a mobile device.[7] This creates the inherent risk that the government will abuse the device and use it to gather data without a warrant, under the guise of simply testing for usage.


Evan’s Law as it is currently proposed, illustrates the growing conflict between law enforcement investigative needs, and citizens constitutional rights. While it is true that a growing number of accidents and collisions are caused by distracted drivers, it is still unsettling to think about the government being able to extract data from your personal electronic device without a warrant. Although the framers of the constitution lived in a time when vehicles, electricity, and mobile devices did not exist, they drafted the constitution, including the bill of rights, to endure the test of time. The framers knew the dangers of giving the government absolute power to peer into the lives of ordinary citizens. In an ever increasing electronic age, we need to be mindful to correctly balance the essential right of privacy against the necessities of law enforcement.

The exclusive purpose of this article is educational and it is not intended as either legal advice or a general solution to any specific legal problem. Corporate offices for Nave DWI Defense Attorneys are located at 432 N. Franklin Street, Suite 80, Syracuse, NY 13204; Telephone No.: 1-866-792-7800. Prior results do not guarantee a similar outcome. Attorney Advertising.

[5] Id.
[7] Id.