When police suspect a driver may have been drinking, they can ask them to take a preliminary alcohol screening test (PAS), sometimes called a breathalyzer. If arrested for drunk driving, drivers are required to submit to a chemical test or lose their license for a year. California is also working on producing a similar roadside device to test for the presence of drugs in the body. Now, lawmakers in New York are pushing for a law requiring drivers to hand over their phones to see if they were texting while driving by using a “textalyzer.” Will California take a similar approach to texting and driving?

“Evan's Law” was named for Evan Lieberman, a 19-year-old who died in a head-on collision with another teenage driver in 2011. After Evan's father, Ben Lieberman filed a lawsuit, he discovered that the other driver had been texting while driving. This led Ben Lieberman to begin a campaign against texting while driving. In 2013, New York implemented stiffer penalties for distracted drivers.

According to one statistic, over 3,000 people were killed, and 431,000 more were injured in vehicle crashes involving distracted drivers in 2014. With the rising number of accidents involving mobile phone use, some lawmakers are looking to treat distracted driving like they treat drunk driving.

The proposed law was approved by the state's transportation committee by a vote of 16 to 2. However, there are a number of possible constitutional challenges that such a law must overcome. The law would allow police officers to do a search of the driver's phone at the scene of an accident to see if they were engaged in texting or typing out an email while driving. If the driver refuses to hand over their phone, they could lose their license.

A device to do an on-the-scene scan is already available, and marketed by the company Cellebrite. The FBI uses a Cellebrite handheld device which can be connected to a phone to gather data. Not surprisingly, Cellebrite is in favor of Evan's Law.

However, civil liberty and privacy advocates doubt the constitutionality of such a bill. In 2014, a Supreme Court decision held that “the police generally may not, without a warrant, search digital information on a cellphone seized from an individual who has been arrested.”

“A law that essentially requires you to hand over your phone to a cop in a roadside situation without a warrant is a non-starter,” said Lee Tien, an attorney with the Electronic Frontier Foundation.

Donna Lieberman, with the New York Civil Liberties Union, says the proposed breathalyzer requirement is not the best way to prevent distracted driving. “There are many cases where people will be fined for lawful activity,” said Lieberman. “There are several ways someone could be using a phone in line with distracted driving laws that could run afoul of this test.”

At Gorelick Law Offices, attorney Lynn Gorelick has dedicated her legal career to defending people facing criminal charges in the East Bay. With more than 30 years of experience, Lynn Gorelick understands the law, and will make sure you get the justice you deserve. If you are charged with drunk driving, distracted driving or other criminal charges, contact the local East Bay criminal defense attorney who understands that you do not have to plead guilty just because you were arrested.