S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 6325--A

                            I N  S E N A T E

                               (PREFILED)

                             January 6, 2016
                               ___________

Introduced  by  Sen.  MURPHY -- read twice and ordered printed, and when
  printed to be committed to the Committee on Transportation --  commit-
  tee  discharged, bill amended, ordered reprinted as amended and recom-
  mitted to said committee

AN ACT to amend the vehicle and traffic law and the  executive  law,  in
  relation  to the field testing of mobile telephones and portable elec-
  tronic devices after a motor vehicle accident or  collision  involving
  damage to real or personal property, personal injury or death

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Legislative intent. The legislature hereby finds  that  the
use  of  mobile  telephones and/or personal electronic devices has dras-
tically increased the prevalence of distracted driving. This destructive
behavior endangers the lives of every driver and passenger traveling  on
New  York  state roadways. In 2001, this legislature enacted legislation
prohibiting the use of mobile telephones  while  driving,  and  in  2009
updated  the  law to include all portable electronic devices. The execu-
tive branch initiated a public campaign against  cell  phone  use  while
driving, and has even established "text stops" along all major highways.
While these efforts have brought much needed attention to the dangers of
distracted driving, reports indicate that 67 percent of drivers admit to
continued  use  of  their cell phones while driving despite knowledge of
the inherent danger to themselves and others on  the  road.  A  10  year
trend  of  declining collisions and casualties was reversed this year as
crashes are up 14 percent, and fatalities increased 8 percent,  suggest-
ing  that  the  problem  has not only gotten worse, but is still greatly
misunderstood.
  Furthermore, law enforcement has  a  difficult  time  enforcing  these
public  safety laws, especially after an accident where it is impossible
to discern whether the operator of a motor vehicle was in fact using his
or her cell phone immediately prior to or at the time of the collision.
  Empowering our law enforcement with technology, which is able to imme-
diately determine cell phone usage without an inquiry into the  content,

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                      [ ] is old law to be omitted.
                                                           LBD13105-07-6

S. 6325--A                          2

will  allow  enforcement  of  these  laws  after an accident while still
protecting essential privacy rights. Therefore,  the  legislature  finds
that  while  technology  has  created this grave danger, it also has the
capacity  to  aid law enforcement in tackling and eradicating distracted
driving caused by mobile telephones and personal electronic devices.
  The legislature further finds 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 text-
ing 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. The state's
invested interest in promoting public safety  and  preventing  senseless
loss of life justifies the creation of Evan's law.
  S  2. Short title. This act shall be known and may be cited as "Evan's
law".
  S 3. Section 215 of the vehicle and traffic law is amended  by  adding
two new subdivisions (d) and (e) to read as follows:
  (D)  THE COMMISSIONER SHALL, JOINTLY WITH THE COMMISSIONER OF CRIMINAL
JUSTICE SERVICES, PROMULGATE RULES AND REGULATIONS, AND TAKE  ANY  OTHER
ACTION  NECESSARY  TO IMPLEMENT THE PROVISIONS OF SECTION TWELVE HUNDRED
TWENTY-FIVE-E OF THIS CHAPTER, RELATING TO FIELD TESTING OF MOBILE TELE-
PHONES AND PORTABLE ELECTRONIC DEVICES. SUCH ACTIONS SHALL  INCLUDE  THE
TESTING  AND DETERMINATION OF THE RELIABILITY AND ACCURACY OF ELECTRONIC
SCANNING DEVICES USED FOR  SUCH  FIELD  TESTING.  THE  COMMISSIONER  AND
COMMISSIONER OF CRIMINAL JUSTICE SERVICES SHALL APPROVE ELECTRONIC SCAN-
NING DEVICES WHICH ARE RELIABLE AND ACCURATE FOR THE PURPOSE OF CONDUCT-
ING FIELD TESTING.
  (E)  THE COMMISSIONER SHALL CONDUCT A PUBLIC EDUCATION CAMPAIGN RELAT-
ING TO THE FIELD TESTING OF MOBILE TELEPHONES  AND  PORTABLE  ELECTRONIC
DEVICES, AND THE IMPLIED CONSENT TO SUCH TESTING OF ANY PERSON OPERATING
A  MOTOR  VEHICLE IN THIS STATE. SUCH CAMPAIGN SHALL INCLUDE INFORMATION
PAMPHLETS PROVIDED WITH EACH APPLICATION FOR A LEARNER'S PERMIT OR DRIV-
ER'S LICENSE, AND EACH RENEWAL THEREOF.
  S 4. Paragraph (h) of subdivision 2 of section 503 of the vehicle  and
traffic  law,  as  amended  by section 1 of part PP of chapter 59 of the
laws of 2009, is amended to read as follows:
  (h) An applicant whose driver's license has been revoked  pursuant  to
(i)  section five hundred ten of this title, (ii) section eleven hundred
ninety-three of this chapter, [and] (iii) section eleven  hundred  nine-
ty-four  of  this chapter, AND (IV) SECTION TWELVE HUNDRED TWENTY-FIVE-E
OF THIS CHAPTER, shall, upon application  for  issuance  of  a  driver's
license,  pay to the commissioner a fee of one hundred dollars. When the
basis for the revocation is a finding of driving after  having  consumed
alcohol   pursuant   to   the   provisions  of  section  eleven  hundred
ninety-two-a of this chapter, the fee to be  paid  to  the  commissioner
shall  be  one hundred dollars. Such fee is not refundable and shall not
be returned to the applicant regardless of the action  the  commissioner
may  take on such person's application for reinstatement of such driving
license. Such fee shall be in  addition  to  any  other  fees  presently
levied  but  shall  not apply to an applicant whose driver's license was
revoked for failure to pass a reexamination or to an applicant  who  has
been issued a conditional or restricted use license under the provisions
of article twenty-one-A or thirty-one of this chapter.

S. 6325--A                          3

  S  5.  Subparagraph  (iv) of paragraph (a) of subdivision 2 of section
511 of the vehicle and traffic law, as amended by  chapter  607  of  the
laws  of  1993,  is  amended and a new paragraph (v) is added to read as
follows:
  (iv)  such  person has in effect three or more suspensions, imposed on
at least three separate dates, for failure to answer, appear  or  pay  a
fine, pursuant to subdivision three of section two hundred twenty-six or
subdivision four-a of section five hundred ten of this chapter[.]; OR
  (V)  THE SUSPENSION OR REVOCATION IS BASED UPON REFUSAL TO SURRENDER A
MOBILE TELEPHONE OR PORTABLE ELECTRONIC DEVICE FOR FIELD TESTING  PURSU-
ANT TO SECTION TWELVE HUNDRED TWENTY-FIVE-E OF THIS CHAPTER.
  S  6.  The  vehicle and traffic law is amended by adding a new section
1225-e to read as follows:
  S 1225-E. FIELD TESTING OF MOBILE TELEPHONES AND  PORTABLE  ELECTRONIC
DEVICES.  1. FOR THE PURPOSES OF THIS SECTION, THE FOLLOWING TERMS SHALL
HAVE THE FOLLOWING MEANINGS:
  (A) "FIELD TESTING" SHALL MEAN  THE  USE  OF  AN  ELECTRONIC  SCANNING
DEVICE,  APPROVED  AND UTILIZED IN ACCORDANCE WITH RULES JOINTLY PROMUL-
GATED BY THE COMMISSIONER  AND  THE  COMMISSIONER  OF  CRIMINAL  JUSTICE
SERVICES,  TO  DETERMINE  WHETHER OR NOT THE OPERATOR OF A MOTOR VEHICLE
WAS USING  A  MOBILE  TELEPHONE  OR  A  PORTABLE  ELECTRONIC  DEVICE  IN
VIOLATION  OF  SECTION  TWELVE  HUNDRED  TWENTY-FIVE-C OR TWELVE HUNDRED
TWENTY-FIVE-D OF THIS ARTICLE. PROVIDED, THAT SUCH USE OF AN  ELECTRONIC
SCANNING  DEVICE SHALL BE LIMITED TO DETERMINING WHETHER THE OPERATOR OF
A MOTOR VEHICLE WAS USING A  MOBILE  TELEPHONE  OR  PORTABLE  ELECTRONIC
DEVICE  IN  VIOLATION  OF EITHER SUCH SECTION AT OR NEAR THE TIME OF THE
ACCIDENT OR COLLISION WHICH  PROVIDES  THE  GROUNDS  FOR  SUCH  TESTING.
FURTHERMORE, NO SUCH ELECTRONIC SCAN SHALL INCLUDE THE CONTENT OR ORIGIN
OF  ANY  COMMUNICATION  OR  GAME  CONDUCTED, OR IMAGE OR ELECTRONIC DATA
VIEWED, ON A MOBILE TELEPHONE OR PORTABLE ELECTRONIC DEVICE.
  (B) "MOBILE TELEPHONE" SHALL MEAN A MOBILE  TELEPHONE  AS  DEFINED  IN
PARAGRAPH   (A)   OF   SUBDIVISION   ONE   FOR  SECTION  TWELVE  HUNDRED
TWENTY-FIVE-C OF THIS ARTICLE.
  (C) "PORTABLE ELECTRONIC DEVICE"  SHALL  MEAN  A  PORTABLE  ELECTRONIC
DEVICE  AS DEFINED IN PARAGRAPH (A) OF SUBDIVISION TWO OF SECTION TWELVE
HUNDRED TWENTY-FIVE-D OF THIS ARTICLE.
  (D) "USING" SHALL MEAN:
  (1) FOR THE PURPOSES OF MOBILE TELEPHONES, USING AS DEFINED  IN  PARA-
GRAPH  (C) OF SUBDIVISION ONE OF SECTION TWELVE HUNDRED TWENTY-FIVE-C OF
THIS ARTICLE; AND
  (2) FOR THE PURPOSES OF PORTABLE ELECTRONIC DEVICES, USING AS  DEFINED
IN   PARAGRAPH   (B)  OF  SUBDIVISION  TWO  OF  SECTION  TWELVE  HUNDRED
TWENTY-FIVE-D OF THIS ARTICLE.
  2. EVERY PERSON OPERATING A MOTOR VEHICLE WHICH HAS BEEN  INVOLVED  IN
AN  ACCIDENT OR COLLISION INVOLVING DAMAGE TO REAL OR PERSONAL PROPERTY,
PERSONAL INJURY OR DEATH, AND WHO HAS IN HIS POSSESSION AT OR  NEAR  THE
TIME OF SUCH ACCIDENT OR COLLISION, A MOBILE TELEPHONE OR PERSONAL ELEC-
TRONIC  DEVICE,  SHALL AT THE REQUEST OF A POLICE OFFICER, SURRENDER HIS
OR HER MOBILE TELEPHONE AND/OR PORTABLE ELECTRONIC DEVICE TO THE  POLICE
OFFICER  SOLELY  FOR  THE PURPOSE OF FIELD TESTING SUCH MOBILE TELEPHONE
AND/OR PORTABLE ELECTRONIC DEVICE.   IF SUCH  FIELD  TESTING  DETERMINES
THAT THE OPERATOR OF THE MOTOR VEHICLE WAS USING HIS OR HER MOBILE TELE-
PHONE  OR  PORTABLE  ELECTRONIC  DEVICE  IN  VIOLATION OF SECTION TWELVE
HUNDRED TWENTY-FIVE-C OR TWELVE HUNDRED TWENTY-FIVE-D OF  THIS  ARTICLE,
THE  RESULTS  OF  SUCH  TESTING  SHALL  CONSTITUTE  EVIDENCE OF ANY SUCH
VIOLATION.

S. 6325--A                          4

  3. (A) ANY PERSON WHO OPERATES A MOTOR VEHICLE IN THIS STATE SHALL  BE
DEEMED TO HAVE GIVEN CONSENT TO FIELD TESTING OF HIS OR HER MOBILE TELE-
PHONE  AND/OR  PORTABLE ELECTRONIC DEVICE FOR THE PURPOSE OF DETERMINING
THE USE THEREOF WHILE OPERATING A MOTOR VEHICLE PROVIDED THAT SUCH TEST-
ING  IS CONDUCTED BY OR AT THE DIRECTION OF A POLICE OFFICER, AFTER SUCH
PERSON HAS OPERATED A MOTOR VEHICLE INVOLVED IN AN ACCIDENT OR COLLISION
INVOLVING DAMAGE TO REAL OR PERSONAL PROPERTY, PERSONAL INJURY OR DEATH.
  (B)(1) IF A PERSON OPERATING A MOTOR VEHICLE INVOLVED IN  AN  ACCIDENT
OR  COLLISION  INVOLVING  DAMAGE  TO REAL OR PERSONAL PROPERTY, PERSONAL
INJURY OR DEATH HAS IN HIS OR HER POSSESSION A MOBILE TELEPHONE OR PORT-
ABLE ELECTRONIC DEVICE, HAVING THEREAFTER BEEN  REQUESTED  TO  SURRENDER
SUCH  MOBILE TELEPHONE AND/OR PORTABLE ELECTRONIC DEVICE FOR FIELD TEST-
ING, AND HAVING BEEN INFORMED THAT THE PERSON'S  LICENSE  OR  PERMIT  TO
DRIVE  AND  ANY  NON-RESIDENT  OPERATING  PRIVILEGE SHALL BE IMMEDIATELY
SUSPENDED AND SUBSEQUENTLY REVOKED, SHALL  BE  REVOKED  FOR  REFUSAL  TO
SURRENDER  HIS OR HER MOBILE TELEPHONE AND/OR PORTABLE ELECTRONIC DEVICE
SOLELY FOR THE PURPOSE OF FIELD TESTING, WHETHER OR NOT  THE  PERSON  IS
FOUND  GUILTY  OF A VIOLATION OF SECTION TWELVE HUNDRED TWENTY-FIVE-C OR
TWELVE HUNDRED TWENTY-FIVE-D OF THIS ARTICLE, REFUSES TO  SURRENDER  HIS
OR  HER  MOBILE  TELEPHONE  OR PORTABLE ELECTRONIC DEVICE SOLELY FOR THE
PURPOSE OF FIELD TESTING, UNLESS A COURT ORDER HAS BEEN GRANTED PURSUANT
TO SUBDIVISION  FOUR  OF  THIS  SECTION,  FIELD  TESTING  SHALL  NOT  BE
CONDUCTED AND A WRITTEN REPORT OF SUCH REFUSAL SHALL BE IMMEDIATELY MADE
BY THE POLICE OFFICER BEFORE WHOM SUCH REFUSAL WAS MADE. SUCH REPORT MAY
BE VERIFIED BY HAVING THE REPORT SWORN TO, OR BY AFFIXING TO SUCH REPORT
A  FORM  NOTICE  THAT  FALSE STATEMENTS MADE THEREIN ARE PUNISHABLE AS A
CLASS A MISDEMEANOR PURSUANT TO SECTION 210.45 OF THE PENAL LAW AND SUCH
FORM NOTICE TOGETHER WITH THE SUBSCRIPTION OF THE DEPONENT SHALL CONSTI-
TUTE A VERIFICATION OF THE REPORT.
  (2) THE REPORT OF THE POLICE OFFICER SHALL SET FORTH  THE  GROUNDS  TO
BELIEVE THAT THE PERSON OPERATED A MOTOR VEHICLE INVOLVED IN AN ACCIDENT
OR  COLLISION  INVOLVING  DAMAGE  TO REAL OR PERSONAL PROPERTY, PERSONAL
INJURY OR DEATH WHILE IN POSSESSION OF A MOBILE  TELEPHONE  OR  PORTABLE
ELECTRONIC  DEVICE, THAT SAID PERSON HAD REFUSED TO SURRENDER HIS OR HER
MOBILE TELEPHONE OR PORTABLE ELECTRONIC DEVICE FOR  FIELD  TESTING,  AND
THAT  NO FIELD TEST WAS ADMINISTERED. THE REPORT SHALL BE TRANSMITTED TO
THE COMMISSIONER BY THE POLICE OFFICER WITHIN FORTY-EIGHT HOURS  OF  THE
REFUSAL.
  (3)  FOR  PERSONS  CHARGED  WITH A VIOLATION OF SECTION TWELVE HUNDRED
TWENTY-FIVE-C OR TWELVE  HUNDRED  TWENTY-FIVE-D  OF  THIS  ARTICLE,  THE
LICENSE  OR  PERMIT  TO  DRIVE  AND ANY NON-RESIDENT OPERATING PRIVILEGE
SHALL, UPON THE BASIS OF SUCH WRITTEN REPORT, BE  TEMPORARILY  SUSPENDED
BY  THE  COURT  WITHOUT NOTICE PENDING THE DETERMINATION OF A HEARING AS
PROVIDED IN PARAGRAPH (C) OF THIS SUBDIVISION.  COPIES  OF  SUCH  REPORT
MUST  BE TRANSMITTED BY THE COURT TO THE COMMISSIONER AND SUCH TRANSMIT-
TAL MAY NOT BE WAIVED EVEN WITH THE CONSENT OF ALL THE  PARTIES.    SUCH
REPORT  SHALL  BE FORWARDED TO THE COMMISSIONER WITHIN FORTY-EIGHT HOURS
OF SUCH FILING OF CHARGES.
  (4) THE COURT OR THE COMMISSIONER SHALL PROVIDE  SUCH  PERSON  WITH  A
SCHEDULED  HEARING DATE, A WAIVER FORM AND SUCH OTHER INFORMATION AS MAY
BE REQUIRED BY THE COMMISSIONER. IF A HEARING, AS PROVIDED IN  PARAGRAPH
(C)  OF  THIS  SUBDIVISION,  IS  WAIVED BY SUCH PERSON, THE COMMISSIONER
SHALL IMMEDIATELY REVOKE THE LICENSE, PERMIT OR  NON-RESIDENT  OPERATING
PRIVILEGE,  AS  OF THE DATE OF RECEIPT OF SUCH WAIVER IN ACCORDANCE WITH
PARAGRAPH (D) OF THIS SUBDIVISION.

S. 6325--A                          5

  (C) ANY PERSON WHOSE LICENSE OR PERMIT TO DRIVE  OR  ANY  NON-RESIDENT
OPERATING PRIVILEGE HAS BEEN SUSPENDED PURSUANT TO PARAGRAPH (B) OF THIS
SUBDIVISION IS ENTITLED TO A HEARING IN ACCORDANCE WITH A HEARING SCHED-
ULE  TO  BE  PROMULGATED BY THE COMMISSIONER. IF THE DEPARTMENT FAILS TO
PROVIDE FOR SUCH HEARING FIFTEEN DAYS AFTER THE RECEIPT OF A REPORT OF A
REFUSAL,  THE  LICENSE, PERMIT TO DRIVE OR NON-RESIDENT OPERATING PRIVI-
LEGE OF SUCH PERSON SHALL BE REINSTATED PENDING A  HEARING  PURSUANT  TO
THIS SECTION. THE HEARING SHALL BE LIMITED TO THE FOLLOWING ISSUES:  (1)
DID  SUCH  PERSON  OPERATE  A  MOTOR  VEHICLE INVOLVED IN AN ACCIDENT OR
COLLISION INVOLVING DAMAGE TO REAL OR PERSONAL PROPERTY, PERSONAL INJURY
OR DEATH; (2) DID SUCH PERSON POSSESS A  MOBILE  TELEPHONE  OR  PORTABLE
ELECTRONIC DEVICE AT OR NEAR THE TIME OF SUCH ACCIDENT OR COLLISION; (3)
WAS  SUCH  PERSON  GIVEN  SUFFICIENT  WARNING,  IN  CLEAR OR UNEQUIVOCAL
LANGUAGE, PRIOR TO SUCH REFUSAL THAT SUCH REFUSAL TO  SURRENDER  HIS  OR
HER MOBILE TELEPHONE AND/OR PORTABLE ELECTRONIC DEVICE FOR FILED TESTING
WOULD  RESULT  IN  THE IMMEDIATE SUSPENSION AND SUBSEQUENT REVOCATION OF
SUCH PERSON'S LICENSE OR OPERATING PRIVILEGE; AND (4)  DID  SUCH  PERSON
REFUSE  TO  SURRENDER  HIS OR HER MOBILE TELEPHONE AND/OR PORTABLE ELEC-
TRONIC DEVICE SOLELY FOR THE PURPOSE OF FIELD TESTING.  IF,  AFTER  SUCH
HEARING,  THE  HEARING  OFFICER,  ACTING  ON BEHALF OF THE COMMISSIONER,
FINDS ON ANY ONE OF SUCH ISSUES IN THE  NEGATIVE,  THE  HEARING  OFFICER
SHALL  IMMEDIATELY  TERMINATE  ANY SUSPENSION ARISING FROM SUCH REFUSAL.
IF, AFTER SUCH HEARING, THE HEARING OFFICER, ACTING  ON  BEHALF  OF  THE
COMMISSIONER  FINDS  ALL  OF THE ISSUES IN THE AFFIRMATIVE, SUCH OFFICER
SHALL IMMEDIATELY REVOKE THE LICENSE OR PERMIT TO DRIVE OR ANY NON-RESI-
DENT OPERATING PRIVILEGE IN ACCORDANCE WITH PARAGRAPH (D) OF THIS SUBDI-
VISION. A PERSON WHO HAS HAD A LICENSE OR PERMIT TO DRIVE  OR  NON-RESI-
DENT   OPERATING   PRIVILEGE  SUSPENDED  OR  REVOKED  PURSUANT  TO  THIS
SUBDIVISION MAY APPEAL THE FINDINGS OF THE HEARING OFFICER IN ACCORDANCE
WITH ARTICLE THREE-A OF THIS CHAPTER. ANY PERSON MAY WAIVE THE RIGHT  TO
A  HEARING  UNDER THIS SECTION. FAILURE BY SUCH PERSON TO APPEAR FOR THE
SCHEDULED HEARING SHALL CONSTITUTE A WAIVER OF SUCH  HEARING;  PROVIDED,
HOWEVER,  THAT SUCH PERSON MAY PETITION THE COMMISSIONER FOR A NEW HEAR-
ING WHICH SHALL BE HELD AS SOON AS PRACTICABLE.
  (D) (1) ANY LICENSE WHICH HAS BEEN REVOKED PURSUANT TO  PARAGRAPH  (C)
OF  THIS  SUBDIVISION  SHALL NOT BE RESTORED FOR AT LEAST ONE YEAR AFTER
SUCH REVOCATION, NOR THEREAFTER, EXCEPT IN THE DISCRETION OF THE COMMIS-
SIONER. HOWEVER, NO SUCH LICENSE SHALL BE RESTORED FOR AT LEAST EIGHTEEN
MONTHS AFTER SUCH REVOCATION, NOR THEREAFTER EXCEPT IN THE DISCRETION OF
THE COMMISSIONER, IN ANY CASE WHERE THE PERSON HAS HAD A  PRIOR  REVOCA-
TION  RESULTING FROM REFUSAL TO SURRENDER HIS OR HER MOBILE TELEPHONE OR
PORTABLE ELECTRONIC DEVICE FOR FIELD TESTING  WITHIN  FIVE  YEARS  IMME-
DIATELY PRECEDING THE DATE OF SUCH REVOCATION.
  (2)  EXCEPT AS OTHERWISE PROVIDED, ANY PERSON WHOSE LICENSE, PERMIT TO
DRIVE OR ANY NON-RESIDENT OPERATING PRIVILEGE IS REVOKED PURSUANT TO THE
PROVISIONS OF THIS SECTION SHALL ALSO BE LIABLE FOR A CIVIL  PENALTY  IN
THE  AMOUNT OF FIVE HUNDRED DOLLARS, EXCEPT THAT IF SUCH REVOCATION IS A
SECOND OR SUBSEQUENT REVOCATION PURSUANT TO THIS SECTION ISSUED WITHIN A
FIVE YEAR PERIOD, THE CIVIL PENALTY SHALL BE  IN  THE  AMOUNT  OF  SEVEN
HUNDRED  FIFTY  DOLLARS.  NO  NEW  DRIVER'S  LICENSE  OR PERMIT SHALL BE
ISSUED, OR NON-RESIDENT OPERATING  PRIVILEGE  RESTORED  TO  SUCH  PERSON
UNLESS  SUCH  PENALTY  HAS  BEEN  PAID.  ALL  PENALTIES COLLECTED BY THE
DEPARTMENT PURSUANT TO THE PROVISIONS OF THIS SECTION SHALL BE THE PROP-
ERTY OF THE STATE AND SHALL BE PAID INTO THE GENERAL FUND OF  THE  STATE
TREASURY.

S. 6325--A                          6

  (E)  THE  COMMISSIONER  SHALL PROMULGATE SUCH RULES AND REGULATIONS AS
MAY BE NECESSARY TO EFFECTUATE THE PROVISIONS OF THIS SECTION.
  (F)  EVIDENCE OF A REFUSAL TO SURRENDER A MOBILE TELEPHONE OR PORTABLE
ELECTRONIC DEVICE FOR FIELD TESTING SHALL BE ADMISSIBLE  IN  ANY  TRIAL,
PROCEEDING  OR HEARING BASED ON A VIOLATION OF THE PROVISIONS OF SECTION
TWELVE HUNDRED TWENTY-FIVE-C OR TWELVE  HUNDRED  TWENTY-FIVE-D  OF  THIS
ARTICLE  BUT  ONLY  UPON  A SHOWING THAT THE PERSON WAS GIVEN SUFFICIENT
WARNING, IN CLEAR AND  UNEQUIVOCAL  LANGUAGE,  OF  THE  EFFECT  OF  SUCH
REFUSAL AND THAT THE PERSON PERSISTED IN THE REFUSAL.
  (G)  UPON  THE REQUEST OF THE PERSON WHO SURRENDERED HIS OR HER MOBILE
TELEPHONE AND/OR  PORTABLE  ELECTRONIC  DEVICE  FOR  FIELD  TESTING  THE
RESULTS OF SUCH TESTING SHALL BE MADE AVAILABLE TO SUCH PERSON.
  4.  (A)  NOTWITHSTANDING  THE  PROVISIONS OF SUBDIVISION THREE OF THIS
SECTION, NO PERSON WHO OPERATES A MOTOR  VEHICLE  IN  THIS  STATE  WHILE
POSSESSING  A  MOBILE TELEPHONE OR PORTABLE ELECTRONIC DEVICE MAY REFUSE
TO SURRENDER SUCH MOBILE TELEPHONE OR PORTABLE ELECTRONIC DEVICE  SOLELY
FOR THE PURPOSE OF FIELD TESTING WHEN A COURT ORDER FOR SUCH TESTING HAS
BEEN ISSUED IN ACCORDANCE WITH THE PROVISIONS OF THIS SUBDIVISION.
  (B)  UPON  REFUSAL  BY ANY PERSON TO SURRENDER HIS OR HER MOBILE TELE-
PHONE AND/OR PORTABLE ELECTRONIC DEVICE FOR THE PURPOSE OF  FIELD  TEST-
ING,  THE  TESTING  SHALL  NOT BE CONDUCTED UNLESS A POLICE OFFICER OR A
DISTRICT ATTORNEY, AS DEFINED IN SUBDIVISION THIRTY-TWO OF SECTION  1.20
OF  THE  CRIMINAL  PROCEDURE  LAW, REQUESTS AND OBTAINS A COURT ORDER TO
COMPEL A PERSON TO SURRENDER HIS OR HER  MOBILE  TELEPHONE  OR  PORTABLE
ELECTRONIC  DEVICE FOR FIELD TESTING UPON PROOF THAT SUCH PERSON WAS THE
OPERATOR OF A MOTOR VEHICLE AND IN THE COURSE OF SUCH OPERATION,  HE  OR
SHE  CAUSED  SERIOUS  PHYSICAL  INJURY, AS DEFINED IN SUBDIVISION TEN OF
SECTION 10.00 OF THE PENAL LAW, TO OR THE DEATH OF ANOTHER PERSON.
  (C)(1) AN APPLICATION FOR A COURT  ORDER  TO  COMPEL  SURRENDER  OF  A
MOBILE TELEPHONE OR PORTABLE ELECTRONIC DEVICE FOR FIELD TESTING, MAY BE
MADE  TO ANY SUPREME COURT JUSTICE, COUNTY COURT JUDGE OR DISTRICT COURT
JUDGE IN THE JUDICIAL DISTRICT IN WHICH THE INCIDENT OCCURRED, OR IF THE
INCIDENT OCCURRED IN THE CITY OF  NEW  YORK  BEFORE  ANY  SUPREME  COURT
JUSTICE  OR  JUDGE  OF  THE CRIMINAL COURT OF THE CITY OF NEW YORK. SUCH
APPLICATION MAY BE COMMUNICATED BY TELEPHONE, RADIO OR  OTHER  MEANS  OF
ELECTRONIC COMMUNICATION, OR IN PERSON.
  (2)  THE  APPLICANT MUST PROVIDE IDENTIFICATION BY NAME AND TITLE, AND
MUST STATE THE PURPOSE OF THE COMMUNICATION. UPON BEING ADVISED THAT  AN
APPLICATION  FOR A COURT ORDER TO COMPEL SURRENDER OF A MOBILE TELEPHONE
AND/OR PORTABLE ELECTRONIC DEVICE SOLELY FOR THE PURPOSE OF FIELD  TEST-
ING  IS  BEING  MADE, THE COURT SHALL PLACE UNDER OATH THE APPLICANT AND
ANY OTHER PERSON PROVIDING INFORMATION IN SUPPORT OF THE APPLICATION  AS
PROVIDED  IN SUBPARAGRAPH THREE OF THIS PARAGRAPH. AFTER BEING SWORN THE
APPLICANT MUST STATE THAT THE PERSON FROM WHOM THE SURRENDER OF A MOBILE
TELEPHONE OR PORTABLE ELECTRONIC DEVICE WAS REQUESTED WAS  THE  OPERATOR
OF A MOTOR VEHICLE AND IN THE COURSE OF SUCH OPERATION, HE OR SHE CAUSED
SERIOUS  PHYSICAL  INJURY  TO  OR  THE DEATH OF ANOTHER PERSON, AND SUCH
PERSON REFUSED TO SURRENDER HIS OR  HER  MOBILE  TELEPHONE  OR  PORTABLE
ELECTRONIC  DEVICE  FOR  FIELD TESTING. THE APPLICANT MUST MAKE SPECIFIC
ALLEGATIONS OF FACT TO SUPPORT SUCH STATEMENT. ANY PERSON PROPERLY IDEN-
TIFIED, MAY PRESENT SWORN ALLEGATIONS OF FACT IN SUPPORT OF  THE  APPLI-
CANT'S STATEMENT.
  (3)  UPON  BEING ADVISED THAT AN ORAL APPLICATION FOR A COURT ORDER TO
COMPEL A PERSON TO SURRENDER HIS OR HER  MOBILE  TELEPHONE  OR  PORTABLE
ELECTRONIC  DEVICE  FOR  FIELD TESTING IS BEING MADE, A JUDGE OR JUSTICE
SHALL PLACE UNDER OATH THE APPLICANT  AND  ANY  OTHER  PERSON  PROVIDING

S. 6325--A                          7

INFORMATION IN SUPPORT OF THE APPLICATION. SUCH OATH OR OATHS AND ALL OF
THE REMAINING COMMUNICATION MUST BE RECORDED, EITHER BY MEANS OF A VOICE
RECORDING  DEVICE OR A STENOGRAPHIC RECORD MADE, THE JUDGE MUST HAVE THE
RECORD  TRANSCRIBED,  CERTIFY  TO  THE ACCURACY OF THE TRANSCRIPTION AND
FILE THE ORIGINAL RECORD AND TRANSCRIPTION WITH THE COURT WITHIN  SEVEN-
TY-TWO  HOURS OF THE ISSUANCE OF THE COURT ORDER.  IF THE LONGHAND NOTES
ARE TAKEN, THE JUDGE SHALL SUBSCRIBE A COPY AND FILE IT WITH  THE  COURT
WITHIN TWENTY-FOUR HOURS OF THE ISSUANCE OF THE ORDER.
  (4)  IF  THE COURT IS SATISFIED THAT THE REQUIREMENTS FOR THE ISSUANCE
OF A COURT ORDER PURSUANT TO THE PROVISIONS OF  PARAGRAPH  (B)  OF  THIS
SUBDIVISION  HAVE  BEEN  MET,  IT MAY GRANT THE APPLICATION AND ISSUE AN
ORDER REQUIRING THE PERSON TO SURRENDER HIS OR HER MOBILE  TELEPHONE  OR
PORTABLE  ELECTRONIC  DEVICE  FOR  THE  PURPOSE OF FIELD TESTING. WHEN A
JUDGE OR JUSTICE DETERMINES TO ISSUE AN ORDER TO COMPEL SURRENDER  OF  A
MOBILE  TELEPHONE OR PORTABLE ELECTRONIC DEVICE FOR THE PURPOSE OF FIELD
TESTING BASED ON AN  ORAL  APPLICATION,  THE  APPLICANT  THEREFOR  SHALL
PREPARE  THE  ORDER  IN ACCORDANCE WITH THE INSTRUCTIONS OF THE JUDGE OR
JUSTICE. IN ALL CASES THE ORDER SHALL INCLUDE THE NAME  OF  THE  ISSUING
JUDGE  OR  JUSTICE,  THE NAME OF THE APPLICANT, AND THE DATE AND TIME IT
WAS ISSUED. IT MUST BE SIGNED BY THE  JUDGE  OR  JUSTICE  IF  ISSUED  IN
PERSON, OR BY THE APPLICANT IF ISSUED ORALLY.
  (5) ANY FALSE STATEMENT BY AN APPLICANT OR ANY OTHER PERSON IN SUPPORT
OF  AN  APPLICATION  FOR  A COURT ORDER SHALL SUBJECT SUCH PERSON TO THE
OFFENSES FOR PERJURY SET FORTH IN ARTICLE TWO HUNDRED TEN OF  THE  PENAL
LAW.
  (6)  THE  CHIEF ADMINISTRATOR OF THE COURTS SHALL ESTABLISH A SCHEDULE
TO PROVIDE THAT A SUFFICIENT NUMBER OF JUDGES OR JUSTICES WILL BE AVAIL-
ABLE IN EACH JUDICIAL DISTRICT  TO  HEAR  ORAL  APPLICATIONS  FOR  COURT
ORDERS AS PERMITTED BY THIS SECTION.
  S  7.  Section  837  of  the  executive law is amended by adding a new
subdivision 21 to read as follows:
  21. ACTING BY AND THROUGH  THE  COMMISSIONER,  TO,  JOINTLY  WITH  THE
COMMISSIONER  OF  MOTOR  VEHICLES, PROMULGATE RULES AND REGULATIONS, AND
TAKE ANY OTHER ACTION NECESSARY TO IMPLEMENT THE PROVISIONS  OF  SECTION
TWELVE HUNDRED TWENTY-FIVE-E OF THE VEHICLE AND TRAFFIC LAW, RELATING TO
FIELD TESTING OF MOBILE TELEPHONES AND PORTABLE ELECTRONIC DEVICES. SUCH
ACTIONS  SHALL  INCLUDE THE TESTING AND DETERMINATION OF THE RELIABILITY
AND ACCURACY OF ELECTRONIC SCANNING DEVICES USED FOR SUCH FIELD TESTING.
THE COMMISSIONER AND COMMISSIONER OF MOTOR VEHICLES SHALL APPROVE  ELEC-
TRONIC  SCANNING DEVICES WHICH ARE RELIABLE AND ACCURATE FOR THE PURPOSE
OF CONDUCTING FIELD TESTING.
  S 8. This act shall take  effect  immediately,  except  that  sections
four,  five  and  six of this act shall take effect two years after this
act shall have become a law.