Hannah R. Heishman; Tod W. Burke, Ph.D.; and Stephen S. Owen, Ph.D.
On June 16, 2011, Evan Lieberman, a 19-year-old university student, was a passenger in a car driven by an acquaintance while on the way to a summer job. The vehicle was involved in a head-on collision which resulted in fatal injuries to Lieberman. The driver stated that the accident occurred when he fell asleep while driving. Lieberman’s father subsequently filed a civil lawsuit to acquire the driver’s phone records which indicated that the driver had been using his cell phone at the time of the accident. On April 5, 2014, an administrative judge in the New York Department of Motor Vehicles found the driver guilty of violating a variety of traffic laws, including using his phone while driving; as a result, his license was suspended.
In an effort to reduce distracted driving, New York state legislators drafted a bill which made provisions for the use of a new technology called the “textalyzer.” This article will provide a brief background on distracted driving and will examine benefits and issues related to textalyzer technology.
Distracted Driving and Cell Phones
At the time of this writing, there are no states which forbid all cell phone use by persons operating a motor vehicle. Fourteen states prohibit drivers from using handheld cell phones (as opposed to hands-free), and 47 states, as well as Washington, DC; Puerto Rico; Guam; and the U.S. Virgin Islands, ban text messaging while driving. As reported by the National Highway Traffic Safety Administration (NHTSA), in 2014, the latest year for which data are available, 10% of fatal crashes and 18% of injuries by crashes were caused by distracted driving. Of fatal crashes caused by distracted driving, 385 involved cell phone use as the primary distraction.
The NHTSA also estimates that, in 2013, there were 34,000 injuries due to cell phone-related accidents and that just over 1.25% of all traffic accidents involved a cell phone. However, research by the National Safety Council has estimated that as many as 26% of all traffic accidents, including those in which no fatality resulted, may be attributed to either cell phone use or texting. The disparity in these figures may be due to the difficulty in determining whether cell phone use was, in fact, the cause of an accident.
What Is a Textalyzer?
In the 2016 legislative session, two New York state legislators introduced a bill named for Lieberman, known as Evan’s Law, which is supported by an organization created by the Lieberman family called Distracted Operators Risk Causalities (DORCS). The bill would allow law enforcement to use technology to determine if a cell phone was in use at the time of an accident. While not passed into law, the bill was reintroduced in the 2017 session, and the technology it proposes could aid in crash investigations.
The new technology, coined the “textalyzer,” is a device which would determine whether the driver’s cell phone was in use at the time of an accident. Results would be immediately available to the law enforcement officers investigating a vehicular accident; under the New York bill, drivers would face penalties for refusing to consent to a textalyzer examination of their phone. As currently envisioned, the textalyzer would only indicate if, and when, the phone was used (whether for telephone, SMS text messages, or other applications) rather than revealing specific content of the phone or its applications.
While not yet widely available, pilot testing of textalyzer technology has begun, and it is likely only a matter of time before they are formally added to the law enforcement accident investigation toolkit. Further, public awareness of the textalyzer is likely to increase; the proposed New York state law includes provisions for a campaign to educate the public about the device and it has already been featured in national media outlets. As such, law enforcement agencies should consider the potential benefits and issues related to textalyzer devices to help guide policy development.
Benefits
There are various benefits offered by textalyzer technology, such as allowing law enforcement to obtain digital evidence related to distracted driving. Use of the technology could aid in establishing the cause of vehicular accidents and the person legally responsible for an accident. If textalyzer use became routine, it could also decrease the number of lawsuits filed to retrieve cell phone records.
A secondary effect of textalyzer technology could be to deter cell phone-related distracted driving, potentially reducing the number of collisions, injuries or fatalities. Deterrence could be achieved through increased public awareness which accident investigators can determine whether a cell phone was in use at the time of an accident. In fact, the New York bill included provisions for a public awareness campaign.
Issues for Consideration
While the textalyzer may prove beneficial, agencies contemplating its use should consider issues, including Fourth Amendment implications, the types of cell phone usage prohibited by law, and how and when the textalyzer would be utilized. None is detrimental to textalyzer technology, but all should be considered both as devices are implemented for use and in policy discussions.
Fourth Amendment and Privacy – It will be important for police agency legal advisors to review textalyzer technology to ensure that its use is applied consistently with Fourth Amendment principles. While there is no direct precedent for a textalyzer, certain cases may be instructive in shaping agency policy.
In Riley v. California, the United States Supreme Court prohibited the warrantless search of cell phone content incident to arrest. The Riley case emphasizes the significance of ensuring that the textalyzer, when deployed, only indicates usage and does not intrude into the protected content of cell phone data. Similarly, a Virginia state court ruled that persons cannot be compelled to disclose the protective numeric passcodes for their cell phones which is an additional signal courts are increasingly concerned about the privacy of cell phone content.
One question which agencies should be prepared to face regards push notifications, in which various alerts or content from text messages, E-mails or social media appear on the home screen of a cell phone, even if it is locked or not otherwise in use at the time. If the use of the textalyzer allows an officer to see this content, whether through the textalyzer itself or by handling the driver’s cell phone, legal arguments will no doubt ensue about whether this constitutes an application of the plain view doctrine or an illegal warrantless search of cell phone data.
Another potential legal concern may be foreshadowed by the recent U.S. District Court case, U.S. v. Lambis. In this case, agents of the Drug Enforcement Administration (DEA) used a technology known as “stingray” to locate a suspect’s cell phone, based on cell tower signal data. The court ruled that the warrantless use of the stingray to locate the cell phone’s location violated the suspect’s privacy rights. A number of states now require warrants to utilize stingray technology. The parallels to warrantless use of the textalyzer in this regard must be considered.
Finally, the United States Supreme Court case of Birchfield v. North Dakota must be considered. The textalyzer device may be compared to the Breathalyzer, as both can facilitate law enforcement investigation of behaviors prohibited while driving (i.e., driving under the influence for the Breathalyzer; use of cell phones for the textalyzer). The Court held that, incident to arrest for driving under the influence of alcohol, breath tests may be administered without a warrant, but blood tests may not. Furthermore, the Court held that only civil penalties may be applied to drivers who refuse to consent to a blood test. The analysis was based on the degree to which each procedure impacted privacy – the Breathalyzer to a small degree and blood draws to a larger degree. It will remain for future courts to determine where the textalyzer falls on this type of privacy continuum.
Nature of Cell Phone Use – The New York statute proposing the textalyzer cross-references New York Vehicle and Traffic Law in terms of what cell phone uses are prohibited. For example, under New York law, it is only permissible for drivers to talk on their phones in a hands-free manner. Virtually any data usage while the vehicle is in motion (or under the control of the driver) is a violation, including a lengthy list of items specified under state code, such as texting, E-mailing, taking photos, utilizing a Web browser, and more.
State laws will vary on this matter, but the questions that these issues raise is whether the textalyzer will distinguish between legally permissible uses of the cell phone (including the passive receipt of messages which the driver may not even view until the vehicle is parked) and those which are prohibited while the vehicle is in motion, or if that task falls to investigators. In addition, drivers with a passenger could request the passenger to send a text message or otherwise access data with the driver’s phone; this would indicate usage of the driver’s cell phone, even if it were not by the driver.
This raises questions as to how law enforcement, prosecutors and courts will utilize evidence drawn from textalyzer technology. Will a positive textalyzer result (indicating usage of a driver’s cell phone at the approximate time of an accident) be viewed as prima facie evidence that the driver was using the phone at the time of the accident? Or, will rebuttable evidence be weighed, if the driver can demonstrate that the cell phone use was legal or that the passenger was in control and in possession of the phone at the time of the accident? Or does textalyzer data serve as one piece of evidence among others used to draw inferences about accident causation? As a new technology, these questions must be considered.
Also as a new technology, the textalyzer will need to be validated to show that it can accurately recover its intended data from electronic devices. Textalyzer technology must be reviewed to ensure that it meets standards for scientific evidence as established in Daubert v. Merrell Dow Pharmaceuticals, Inc., where the U.S. Supreme Court upheld standards to ensure that scientific evidence admitted in court was relevant and reliable, with that determination grounded in testing and review consistent with principles of the scientific method.
Guidelines for Textalyzer Use – Agencies will need to establish appropriate guidelines for use and interpretation of data. One key consideration will be whether the textalyzer technology should be deployed in all accident investigations, or only those in which distracted driving is a suspected cause. In addition, the time of the accident will need to be known in order to determine if a cell phone was in use at that time. This can be complicated, given that some accidents may be reported minutes after they occur, and the precise moment of impact may not otherwise be recorded.
In addition, if the textalyzer detects cell phone usage, how close to the accident time does it need to be in order to draw an inference that the cell phone use may have been a contributing factor (as distracted driving) to the accident? This will be a question for investigators to consider – and could be complicated, for instance, if a message is received on the phone (potentially indicating cell phone usage), but not accessed and read until a later time. Even if not at the time of the accident, would a positive textalyzer finding provide sufficient cause for a citation related to state code prohibitions of cell phone use while driving?
Recommendations and Conclusion
As noted above, there are a variety of issues for consideration surrounding textalyzer technology. These issues should be addressed before implementation. The three most significant recommendations would be those issued for any new technology – the importance of studying its capabilities and reviewing legal and scientific standards; developing sound policy guidance on use of the technology; and providing thorough training to the officers who will be deploying it in the field. That being said, textalyzer technology may prove to be a valuable resource for law enforcement and for promoting traffic safety in the community.
Ms. Heishman graduated with a Master of Science degree from Radford University, Radford, Virginia. She can be reached at hheishman@radford.edu.
Dr. Burke, a former police officer, is a professor of criminal justice at Radford University in Radford, Virginia. Dr. Burke can be reached at tburke@radford.edu.
Dr. Owen is a professor and chair of the Department of Criminal Justice at Radford University in Radford, Virginia. Dr. Owen can be reached at ssowen@radford.edu.