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Will You Have to Take a Text Test?

by | Apr 14, 2016 | 0 comments

Police May Start Testing Phones

Imagine: You’re in your car, driving to work. You get a text message from your boss that the morning meeting has been pushed back an hour. As you put your phone away, you approach an intersection with a green light. The light then turns yellow and instead of going through the intersection, the car in front of you stops suddenly. You slam on the brakes but it’s too late — you crash into him. You pull over to a nearby parking lot, exchange information with the other driver, and call the police. An officer comes and as he is questioning you about the accident, he asks if he can review your cellphone…

Refusing his request may soon cost you your license.

Textalyzer May Soon Be Standard Protocol

The ability of police officers to ask drivers to submit to testing is not new. Drunk driving laws across the nation require motorists to submit to “breath testing” where an officer suspects the driver has been drinking.

Using a device called a Breathalyzer, police officers may ask you to “blow” into a machine in order to get a reading for Blood Alcohol Content (BAC). Officers use the results of the test in their investigation for drunk driving. If you refuse to take a Breathalyzer test, implied consent laws in Georgia require that you lose your driving privileges for at least a year.

Now, lobbying groups have suggested that the same tactics could be used to curb Distracted Driving and are now asking state legislatures to allow police to use a similar test in their investigations. Proponents of these laws argue that the usage of the Breathalyzer in combination with implied consent laws, has helped to curb drunk driving (that’s incredibly debatable, but I’ll save that for another blog article).

What is a Textalyzer: “We’re all familiar with the Breathalyzer, the brand name for a roadside device that measures a suspected drunken driver’s blood-alcohol level. It has been in use for decades. Now there’s a so-called “textalyzer” device to help the authorities determine whether someone involved in a motor vehicle accident was unlawfully driving while distracted.”

Textalyzer Results: Under the first-of-its-kind legislation proposed in New York, drivers involved in accidents would have to submit their phone to roadside testing from a textalyzer to determine whether the driver was using a mobile phone ahead of a crash…Further analysis, which might require a warrant, could be necessary to determine whether such usage was via hands-free dashboard technology and to confirm the original finding.

Driver’s Giving Implied Consent: The law, which is before the New York Senate Transportation Committee, would recast the motor-vehicle driving law to make it so that motorists give “implied consent” for “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.

First Came the Breathalyzer, Now Meet the Roadside Police “Textalyzer,” by David Kravets, from Ars Technia

Problems with Allowing the Textalyzer

Allowing police officers to test your cellphone after an accident raises several concerns. Many opponents to such legislation argue that this would be a violation of the Fourth Amendment.

The Fourth Amendment protects us against unlawful search and seizures by the government and requires a warrant. Textalyzer laws may be in violation of this constitutional provision, even if the search of the phone doesn’t include areas like contacts, conversations, photos, and data.

Not to mention that the same company developing the technology is Cellebrite, the same company that helped the police “hack” into the iPhone. Privacy does not seem to be this company’s main concern.

Should Police Be Able to Use a Textalyzer?

My take on this — no, police should not be allowed to use a textalyzer in order to test your phone. Arguments that they should be allowed to search your phone are unfounded.

Unlike, the Breathalyzer test, there is no basis for having police conduct the search of your cellphone in the field. The argument for allowing the Breathalyzer test is that a person’s BAC can go down over a period of time. When tested later, the BAC level can be lower than what it was when the person was actually driving. So, there would be no proof that the person was driving with a BAC over the legal limit.

The same is not true for distracted driving and texting.  Cell phone providers keep this information for years.  The data will not disappear if the police take the time and get a warrant and up until now, that’s exactly what they’ve done.