S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2306
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                             January 12, 2017
                                ___________
 
 Introduced  by  Sens.  MURPHY,  AVELLA,  RANZENHOFER  --  read twice and
   ordered printed, and when printed to be committed to the Committee  on
   Transportation
 
 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.

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD02344-01-7
              

 S. 2306                             2
 
   Empowering our law enforcement with technology, which is able to imme-
 diately  determine cell phone usage without an inquiry into the content,
 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.
   § 2. Short title. This act shall be known and may be cited as  "Evan's
 law".
   §  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.
   §  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

 S. 2306                             3
 
 been issued a conditional or restricted use license under the provisions
 of article twenty-one-A or thirty-one of this chapter.
   §  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.
   § 6. The vehicle and traffic law is amended by adding  a  new  section
 1225-e to read as follows:
   §  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,

 S. 2306                             4
 
 THE RESULTS OF SUCH  TESTING  SHALL  CONSTITUTE  EVIDENCE  OF  ANY  SUCH
 VIOLATION.
   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

 S. 2306                             5
 
 PRIVILEGE,  AS  OF THE DATE OF RECEIPT OF SUCH WAIVER IN ACCORDANCE WITH
 PARAGRAPH (D) OF THIS SUBDIVISION.
   (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-

 S. 2306                             6

 ERTY OF THE STATE AND SHALL BE PAID INTO THE GENERAL FUND OF  THE  STATE
 TREASURY.
   (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

 S. 2306                             7
 
 ELECTRONIC DEVICE FOR FIELD TESTING IS BEING MADE, A  JUDGE  OR  JUSTICE
 SHALL  PLACE  UNDER  OATH  THE  APPLICANT AND ANY OTHER PERSON PROVIDING
 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.
   § 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.
   §  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.

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  2306--A
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                             January 12, 2017
                                ___________
 
 Introduced  by  Sens. MURPHY, AVELLA, BONACIC, GRIFFO, JACOBS, KAMINSKY,
   KENNEDY, KLEIN, PHILLIPS, RANZENHOFER, ROBACH, VALESKY --  read  twice
   and ordered printed, and when printed to be committed to the Committee
   on Transportation -- recommitted to the Committee on Transportation in
   accordance  with  Senate  Rule 6, sec. 8 -- committee discharged, bill
   amended, ordered reprinted as amended and recommitted to said  commit-
   tee
 
 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.

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD02344-02-8
              

 S. 2306--A                          2
 
   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,
 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.
   §  2. Short title. This act shall be known and may be cited as "Evan's
 law".
   § 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.
   § 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

 S. 2306--A                          3
 
 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.
   §  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.
   § 6. The vehicle and traffic law is amended by adding  a  new  section
 1225-e to read as follows:
   §  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

 S. 2306--A                          4
 
 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.
   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

 S. 2306--A                          5
 
 (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.
   (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

 S. 2306--A                          6
 
 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.
   (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.

 S. 2306--A                          7
 
   (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
 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.
   § 7. Section 837 of the executive law  is  amended  by  adding  a  new
 subdivision 22 to read as follows:
   22.  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.
   §  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.