Nevada may be the first state in the US to introduce legislation that lets police check if you’ve been texting while driving using controversial technology.
The ‘textalyzer’, described as a breathalyzer for texting, could be used by law enforcement on drivers at the scene of a car accident.
However, the use of the measure to stop people being distracted behind the wheel has ignited privacy concerns.
Critics say that it violates US constitutional protections against unreasonable search and seizure.
Lawmakers have questioned the practicality of the technology, while acknowledging the threat of distracted driving.
Those in favour of the legislation say that existing laws that are intended to punish those who text while driving are impossible to enforce.
Law enforcement officials say that weak punishments do little to stop drivers from texting, scrolling or otherwise using their phones.
They also say there is no consistent police practice that holds those drivers accountable for traffic crashes, unlike drunken driving.
A similar measure was introduced in 2017 and failed in the New York Legislature, but lawmakers are considering it again.
New Jersey, the city of Chicago and Tennessee as well as New York are considering bringing in the legislation.
If the Nevada measure passes, police would use a device known as a ‘textalyzer,’ which connects to a cellphone and looks for user activity.
It is made by Israel-based company Cellebrite, which says the technology does not access or store personal content.
It has not been tested in the field and is not being used by any law enforcement agencies.
The company said the device could be tested in the field if the Nevada legislation passes.
Advocate Ben Lieberman, who lost his 19-year-old son to a crash where a driver had been texting, has become the face of the push for the device.
The New York resident urged a panel of Nevada lawmakers to support the measure earlier this month, saying distracted driving should hold a greater social stigma.
‘When I was growing up, drunk driving was a joke. Now it’s not a joke,’ he told lawmakers earlier this month. ‘Device use is a joke. Make it so it’s not funny.’
Opponents air concerns that the measure violates the Fourth Amendment, which protects against unreasonable search and seizure.
Jay Stanley, a senior policy analyst at the American Civil Liberties Union, also raised questions over how the software will work and if it will be open sourced so the public can ensure it doesn’t access personal content.
Lieberman points to a paper by Ric Simmons, a professor at Ohio State University’s law school, arguing that testing a cellphone after a crash is ‘minimally intrusive’ and does not violate the Fourth Amendment.
In the initial version of the Nevada proposal, drivers who refused to have their phones checked would have faced a 90-day suspension of their driver’s license.
An amendment by the measure’s sponsor, Democratic Assemblywoman Michelle Gorelow, withdrew the penalty and said police must obtain a warrant if a driver refuses access.
The amendment led Democratic Assemblyman Ozzie Fumo to ask if the legislation was necessary because police already can get search warrants to access cellphones.
‘Wouldn’t it be better just to give this technology to (the police) and so that they can utilise it after they get the warrant already?’ he said.
‘Nothing in this bill is actually new, ’cause the law enforcement (agency) already has the techniques and tools that we’re providing.’
WHAT DOES THE LAW SAY ABOUT USING SMARTPHONES WHILE BEHIND THE WHEEL?
In the UK, it is illegal in most situations to use a hand-held mobile phone or similar device – such as a sat nav or camera – while driving a car or riding a motorcycle.
These rules apply even while stopped at traffic lights or queuing in traffic.
Some laws target handheld devices only, while other laws affect both handheld and handsfree devices.
Motorists can only use a hand-held mobile in the case of a genuine emergency that requires a 999/112 call and it is not safe or impractical to pull over and park.
Drivers are obliged to remain in full control of their vehicles at all time.
If a police officer feels the motorist is not in full control because they are tuning their radio or using a sat-nav or phone in a cradle, they may also face prosecution.
Drivers supervising learner drivers or riders are also banned from using hand-held devices despite being in a the passenger seat.
Motorists can only use a hand-held device if their car is safely parked in an appropriate location.
Pulling over to the hard shoulder to take or make a call could result in prosecution.
Breaching the legislation can result in 6 penalty points and a fine of £200.
If the case goes to court, the driver or rider could face a ban and a maximum fine of £1,000.
Drivers of buses or goods vehicles face higher fines of £2,500.
Motorists with their phones or sat navs attached to their windscreens can also face prosecution, if the area swept by the windscreen wipers is obscured.
Australia and the United States
In the United States and Australia, laws regulating the use of mobile phones and other electronics by motorists differ from state to state.
Some laws affect only novice drivers or commercial drivers, while some laws affect all drivers.
In the US, no state bans all cell phone use for all drivers. However, many prohibit all drivers from using hand-held cell phones while driving.
All phone use by newer drivers is prohibited by 36 states and Washington DC and 19 states, plus Washington DC, prohibit any phone use by school bus drivers if children are present.
In Australia, common sense dictates that you should minimise use of your phone while driving, sticking to hands-free mode and a Bluetooth headset if you want to make calls.
Exactly what you can and can’t do varies a little state by state, with many mandating the use of hands-free or commercially manufactured cradles, including for GPS devices.
John Whetsel, former sheriff of Oklahoma County, Oklahoma, said the practice is not consistent among agencies because distracted driving is still a relatively new issue.
Plus, laws vary between states and securing a search warrant for a phone can depend on an agency’s resources, he said.
Gorelow, the measure’s sponsor, argued that phone records only provide a ‘sliver’ of information.
Social media use, browsing the internet and playing games would not show up on those records, she told lawmakers.
‘It’s like a Breathalyzer that only detects tequila,’ Gorelow said, adding that the ‘textalyzer’ would only show if a person was swiping or typing.
The National Highway Traffic Safety Administration says 3,450 people died nationwide in 2016 from traffic crashes where distraction was an issue. About 14 per cent involved someone using a cellphone, the agency said.