New York law could allow roadside 'textalyzer' checks for distracted driving

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Comments

  • Reply 21 of 69
    RosynaRosyna Posts: 82member
    lkrupp said:
    Rosyna said:
    As I said, there are no exceptions, including exigent circumstances, to when an LEO needs a specific warrant to search a phone. Had you read the article, you would have understood that.

    Furthermore, A court cannot legally punish you in any manner, including through harassment, if you refuse to self-incriminate yourself. This has been repeatedly backed up in court.

    I don't know why you keep bringing up this "driving is not a right" nonsense as it is unrelated to anything here. You are protected from unreasonable searches regardless of any privilege you're exercising. This has been tested in court. https://en.wikipedia.org/wiki/United_States_v._Jones
    And I don’t know how get through to your thick head. You keep wagging on about being forced to turn over your phone. You are NOT BEING FORCED to do anything. The police ask your to let them inspect your phone under this law. You say no and that’s it. What’s unconstitutional about this law? The asking? The police can’t ask you to do this voluntarily? Is that what you are saying? In refusing you lose your driving privileges for 90 days. So again what part of this law is unconstitutional?
    You just stated the unconstitutional part, that you'd be punished for exercising your rights…

    "Do this or else" is the very definition of being forced.
    edited April 2016 tallest skilicoco3redraider11cnocbuilord amhran
  • Reply 22 of 69
    RosynaRosyna Posts: 82member
    konqerror said:
    Rosyna said:

    Of course, there's no way to prove you didn't use a hands free system or even that you were the one using the phone.
    Not if it's a text message and, like the majority of trips, you're the only person in the car. Also, by Federal law, commercial operators, like trucks and buses, are prohibited from hands free use anyway.
    A text message can be sent using only voice commands on every platform.
    icoco3
  • Reply 23 of 69
    icoco3icoco3 Posts: 1,459member
    lkrupp said:
    Rosyna said:
    As I said, there are no exceptions, including exigent circumstances, to when an LEO needs a specific warrant to search a phone. Had you read the article, you would have understood that.

    Furthermore, A court cannot legally punish you in any manner, including through harassment, if you refuse to self-incriminate yourself. This has been repeatedly backed up in court.

    I don't know why you keep bringing up this "driving is not a right" nonsense as it is unrelated to anything here. You are protected from unreasonable searches regardless of any privilege you're exercising. This has been tested in court. https://en.wikipedia.org/wiki/United_States_v._Jones
    And I don’t know how get through to your thick head. You keep wagging on about being forced to turn over your phone. You are NOT BEING FORCED to do anything. The police ask your to let them inspect your phone under this law. You say no and that’s it. What’s unconstitutional about this law? The asking? The police can’t ask you to do this voluntarily? Is that what you are saying? In refusing you lose your driving privileges for 90 days. So again what part of this law is unconstitutional?
    How about, they just go get the warrant then we don't have to play these games.  You don't even have to talk to them at the scene of an accident.
    tallest skilredraider11
  • Reply 24 of 69
    mike1mike1 Posts: 1,884member
    Rosyna said:
    lkrupp said:
    And I don’t know how get through to your thick head. You keep wagging on about being forced to turn over your phone. You are NOT BEING FORCED to do anything. The police ask your to let them inspect your phone under this law. You say no and that’s it. What’s unconstitutional about this law? The asking? The police can’t ask you to do this voluntarily? Is that what you are saying? In refusing you lose your driving privileges for 90 days. So again what part of this law is unconstitutional?
    You just stated the unconstitutional part, that you'd be punished for exercising your rights…

    Not true at all. There is absolutely no difference between this and a breathalyzer. You agree to submit to a breathalyzer when you get your license or face revocation of your license.(the privilege). Period. End of story. You have a constitutional right not to submit to the breathalyzer but that does not mean your privilege to drive can not be revoked. People surrender their rights all the time. Non-disclosure agreements limit free speech, but they are entered into voluntarily, just like obtaining a driver's license. Breathalyzer results are not the preferred evidence in a DWI case, but it more easily allows the prosecutor to obain a blood test, which is more reliable. This test will likely make it easier to obtain a warrant for the phone. That test will better indicate whether the phone was being used lawfully (hands free) during the incident.
  • Reply 25 of 69
    RosynaRosyna Posts: 82member
    mike1 said:
    Rosyna said:
    You just stated the unconstitutional part, that you'd be punished for exercising your rights…

    Not true at all. There is absolutely no difference between this and a breathalyzer. You agree to submit to a breathalyzer when you get your license or face revocation of your license.(the privilege). Period. End of story. You have a constitutional right not to submit to the breathalyzer but that does not mean your privilege to drive can not be revoked. People surrender their rights all the time. Non-disclosure agreements limit free speech, but they are entered into voluntarily, just like obtaining a driver's license. Breathalyzer results are not the preferred evidence in a DWI case, but it more easily allows the prosecutor to obain a blood test, which is more reliable. This test will likely make it easier to obtain a warrant for the phone. That test will better indicate whether the phone was being used lawfully (hands free) during the incident.
    See my previous post. You cannot refuse a breathalyzer as it is non-testimonial evidence. Giving access to a phone is testimonial evidence and subject to the protections given in the 5th amendment. There is a strict dichotomy between these two things in US law.

    I'm also not sure why you brought up the red herring of NDAs. The first amendment covers restrictions on the government, not private persons. 
    edited April 2016 icoco3ronnredraider11tallest skil
  • Reply 26 of 69
    lkrupplkrupp Posts: 7,078member
    Rosyna said:
    lkrupp said:
    And I don’t know how get through to your thick head. You keep wagging on about being forced to turn over your phone. You are NOT BEING FORCED to do anything. The police ask your to let them inspect your phone under this law. You say no and that’s it. What’s unconstitutional about this law? The asking? The police can’t ask you to do this voluntarily? Is that what you are saying? In refusing you lose your driving privileges for 90 days. So again what part of this law is unconstitutional?
    You just stated the unconstitutional part, that you'd be punished for exercising your rights…

    "Do this or else" is the very definition of being forced.
    So all existing law regarding refusal to take a breathalyzer test and then being ‘punished’ by losing driving privileges is unconstitutional? The SCOTUS disagrees and has determined it is lawful to do so. You are wrong. And if the SCOTUS says it’s constitutional it is. They are the ones who decide, no one else.
  • Reply 27 of 69
    As much as I don't like the sound of this, remember that driving is considered a privilege in most states (or all states?). So constitutionally, sure, you're well within your rights to refuse a breathalyzer or a textalyzer, but the state isn't required to give you a drivers license either. So yeah, you're able to refuse, but then they just automatically take away your license. It's like this in many states for DUI.
  • Reply 28 of 69
    RosynaRosyna Posts: 82member
    lkrupp said:
    Rosyna said:
    You just stated the unconstitutional part, that you'd be punished for exercising your rights…

    "Do this or else" is the very definition of being forced.
    So all existing law regarding refusal to take a breathalyzer test and then being ‘punished’ by losing driving privileges is unconstitutional? The SCOTUS disagrees and has determined it is lawful to do so. You are wrong. And if the SCOTUS says it’s constitutional it is. They are the ones who decide, no one else.
    Please read the entirety of previous comments before continuing to post your nonsense.
    edited April 2016 ronnredraider11tallest skilcnocbuilord amhran
  • Reply 29 of 69
    johnnashjohnnash Posts: 128member
    Rosyna said:
    lkrupp said:
    Are you saying you have a Constitutional right to drive an automobile? Courts have long ruled that you do not have such a right. You are perfectly free to refuse the proposed textalyzer test. You have that right. You just can’t drive a car for the next ninety days if you do.
    You have a 4th Amendment right to not be searched in an unreasonable manner (this law violates that) and you have a 5th Amendment right to due process and protection from self-incrimination (this law violates that).

    The fact driving is not a constitutional right doesn't trump your actual constitutional rights. And courts cannot punish you if you refuse to waive your constitutional rights.
    Actually you DO have a constitutional right not to be searched without a warrant, but driving is regarded as a privilege and not a right.  They can absolutely suspend your license for that, same goes for refusing a breathalyzer test.  You don't have to submit as long as you're aware of the impact.  If you look at the fine print when you're signing up for a license you'll see something to that effect.

    Do I agree with this?  no, it's complete and utter bullshit.  I hope it doesn't pass.
  • Reply 30 of 69
    What I know is reading a book or cellphone while driving is bad for the motoring public. It needs to stop so what is the solution to this? I see people saying constitution blah blah blah...and all the reasons why they can't do certain things. What is the solution to the problem then?
  • Reply 31 of 69
    icoco3icoco3 Posts: 1,459member
    lkrupp said:
    Rosyna said:
    You just stated the unconstitutional part, that you'd be punished for exercising your rights…

    "Do this or else" is the very definition of being forced.
    So all existing law regarding refusal to take a breathalyzer test and then being ‘punished’ by losing driving privileges is unconstitutional? The SCOTUS disagrees and has determined it is lawful to do so. You are wrong. And if the SCOTUS says it’s constitutional it is. They are the ones who decide, no one else.
    Go back to comment 23...
    Rosynaronntallest skil
  • Reply 32 of 69
    icoco3icoco3 Posts: 1,459member
    What I know is reading a book or cellphone while driving is bad for the motoring public. It needs to stop so what is the solution to this? I see people saying constitution blah blah blah...and all the reasons why they can't do certain things. What is the solution to the problem then?
    Get a warrant.  Then, there is no questions.  Besides, if the phone is secured at the scene then entered as evidence upon execution of a warrant, what is the issue?  No matter how people view it, it is covered and can't come back to bite the police later on.
    Rosynaronntallest skil
  • Reply 33 of 69
    sirdirsirdir Posts: 114member
    Don't know American law but I don't think sticking to your constitutional rights should have any negative consequences.
    tallest skil
  • Reply 34 of 69
    T.j.p.T.j.p. Posts: 24member
    lkrupp said:
    100% not Constitutional. I’d love to say that means it won’t happen, but of course it will.
    Are you saying you have a Constitutional right to drive an automobile? Courts have long ruled that you do not have such a right. You are perfectly free to refuse the proposed textalyzer test. You have that right. You just can’t drive a car for the next ninety days if you do.
    https://www.linkedin.com/pulse/us-supreme-court-says-license-necessary-drive-public-letennier
    Nope the US Federal Courts have said driving on the highways is a right. You can protest the circumstances of safety, but other ruling cover that.

  • Reply 35 of 69
    Drivers in New York might soon be subject to on-the-spot analysis of their mobile phones to determine whether they were distracted by their devices in the run-up to accidents, if a proposed law passes the state legislature.




    The bill would give police officers the authority to use so-called "textalyzers" to determine whether a phone was being used in the moments before an accident occurred. As noted by Ars Technica, those who refuse to consent to the search would face immediate suspension of their driving license.

    One company developing such a textalyzer, Cellebrite -- the same firm that helped the FBI crack the San Bernardino iPhone -- says that their device would not gather personal data like contacts or photos in order to comply with the fourth amendment. Indeed, such a protection is included in the text of the bill:

    No such electronic scan shall include the content or origin of any communication, game conducted, image or electronic data viewed on a mobile telephone or a portable electronic device.


    Given that, it isn't clear exactly how the devices would determine if a phone was in use. One method may be to analyze the contents of the SIM card, though that would not shed light on how the device was used; that is, whether the driver was looking at it or using it through a hands-free system.

    To make those determinations, investigators would need an additional warrant for a device search.
  • Reply 36 of 69
    The test doesn't appear to show if the phone was actually being used, which is likely to be a legal problem.
  • Reply 37 of 69
    SoliSoli Posts: 8,822member
    1) Another reason why I wish Apple would add a "poison finger" option to Touch ID to disallow any Lock Screen data until a passcode is inputted.

    2) A bit of a segue, but with texting and driving being a regal issue I'd like to see the Apple Car—at the very least—mute any iPhoje notifications whilst the car is being driven. I'm not exactly sure how this could be achieved, but if we put breathalyzers on the ignitions of cars of convicted drunk drivers, then disabling notifications while a car is in use shouldn't be too tough.
  • Reply 38 of 69
    Jeez, looks like the Soviets won after all.
    tallest skil
  • Reply 39 of 69
    It seems as though you will be punished for not unlocking your phone, and that punishment consists of suspending your drivers' license. Totally unconstitutional.
  • Reply 40 of 69
    tallest skiltallest skil Posts: 43,399member
    lkrupp said:
    And if the SCOTUS says it’s constitutional it is. They are the ones who decide, no one else.
    HAHAHAHAAHAHAHAHAHAHAHAH

    No.

    icoco3
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