The “textalyzer” is a device being developed for law enforcement to determine driver smartphone use at the time of, or just before, a crash. It is named after the breathalyzer, which provides police with a reasonably reliable way to make a roadside determination of whether a driver had consumed alcohol and an estimation of blood alcohol level. Like the breathalyzer, no warrant would be required for police use of the textalyzer to download information about smartphone usage, and a driver's refusal to allow testing would result in license suspension. Legislation to permit police to use the textalyzer is currently pending in New York and several other states are interested in the textalyzer as a way to combat distracted driving. The textalyzer is supported by traffic safety advocates, but vigorously opposed by privacy advocates like the ACLU.

How Prevalent Is Distracted Driving?

A 2015 study by AT&T revealed that seven in 10 of us will use our smartphones while driving, and, in addition to texting and emailing, four in 10 smartphone users will access social media, almost three in 10 will surf the net and one in 10 will video chat while driving, “Smartphone Use While Driving Grows Beyond Texting to Social Media, Web Surfing, Selfies, Video Chatting,” http://about.att.com/story/smartphone_use_while_driving_grows_beyond_texting.html.

AAA Foundation's 2016 Traffic Safety Culture Index revealed that about 33 percent of 16 to 18 year-old drivers, (an astounding) 60 percent of 19 to 24 year-old drivers and 50 percent of 25 to 39 year-old drivers will compose and send text messages while driving. Another 2015 AAA study revealed that 58 percent of serious teen crashes were due to driver distraction. According to the National Highway Traffic Safety Administration (NHTSA), in 2015 automobile fatalities attributable to distracted driving increased faster than those for drunk driving, speeding and failing to wear seat belts.

Approximately 10 people are killed and 1000 are injured every single day in the United States because of distracted driving. As troubling as these statistics are, the National Safety Council (NSC) suggests that distracted driving fatalities are vastly underreported due to drivers' reluctance to admit phone use, low priority by police in collecting data, inaccurate police reports and difficulty obtaining phone records.

Fourteen states and the District of Columbia have enacted “hands-free only” laws, while at least six other states are contemplating doing so, but there is no conclusive evidence that these laws reduce crashes, see https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4001674/.

How Will the 'Textalyzer' Work?

Presently, the textalyzer has been built only as a prototype and its manufacturer, Cellebrite, is awaiting approval and guidance for manufacturing the final design. The textalyzer would only be used following a crash, not when hand-held use of a phone is observed. The textalyzer was designed to limit its extraction of information to usage only, meaning it is not capable of extracting actual content. After a crash, a police officer would ask a driver to unlock his phone and hand the driver a cord connected to the textalyzer. The driver would connect the cord to his smartphone and, in about a minute, extraction of information would be complete. The phone would remain in the driver's possession during testing. If the driver had been texting, or using any apps the usage would be detected, but not the content of the message, identity of the recipient or what was done with the app. Based on the results the police could seek a warrant for a more in-depth examination to include content to be performed by a device other than the textalyzer.

Arguments in Support of the Textalyzer

An officer can write a ticket if he sees a motorist holding a phone in states like New York, New Jersey, Connecticut or California where only “hands-free” use is permitted. However, when arriving at a crash scene, absent an admission of phone use, no ticket can be issued for cell phone use. In many jurisdictions, since a crash without serious injuries or death is classified as non-criminal, prosecutors will not issue subpoenas to obtain police records. It is often only during discovery in civil cases that phone records are obtained. Even when phone records are obtained from service providers the information is limited; for example, it will not indicate app usage. The arduous process to obtain those records often deters police from further investigation. Thus, it is argued, without the textalyzer, we will continue to be limited in our ability to accurately assess the scope of the distracted driving problem.

Proponents maintain that the textalyzer would be a strong deterrent to distracted driving because drivers would know that police could determine smartphone use roadside and that refusal to allow use of the textalyzer would result in license suspension. Proponents argue that the rationale for allowing warrantless breath tests based on “implied consent” is equally applicable to the textalyzer. Society has just as legitimate an interest in reducing distracted driving as it does drunk driving. When drivers obtain licenses they would impliedly be consenting to both the use of a breathalyzer and the textalyzer without a warrant. Requiring a warrant would markedly decrease the deterrent effect of the breathalyzer and, by analogy, the deterrent effect of the textalyzer.

What Are the Privacy Concerns?

The ACLU argues that warrants for highly intrusive searches, like the textalyzer, have historically been required. Opposition to the textalyzer is based on an expectation of privacy smartphone users have regarding confidential information contained on phones, which was unanimously recognized by the U.S. Supreme Court in Riley v. California, 134 S. Ct. 2473 (2014). Chief Justice John Roberts classified smartphones as “minicomputers” which contain massive amounts of a user's confidential information, distinguishing them from traditional items searched during an arrest.

Opponents of the textalyzer liken its intrusiveness to that of a blood test to determine drunk driving, which always requires a warrant. In 2016, the Supreme Court drew a sharp line between breath and blood tests utilized to determine intoxication, see Birchfield v. North Dakota, 136 S. Ct. 2160 (2016). A warrantless breath test is permitted because it consists of minimal physical intrusion and reveals a limited amount of information, as compared with a blood test, which is much more physically invasive. Blood tests also leave a sample in police possession, whereas nothing remains after a breath test except for the blood alcohol reading. Critics contend the textalyzer report could contain a host of information and serve as a road map for future investigation, and is therefore more like a blood test than a breath test. Additionally, identification of an app in usage could be very intrusive depending on the nature of the app, i.e., “Narcotics Anonymous Recovery Companion.”

Critics contrast the reasonable suspicion requirements for asking motorists to submit to a breathalyzer, including observations of erratic driving, the smell of alcohol and failing field sobriety tests, with only the mere occurrence of a crash to trigger use of the textalyzer.

Opponents are skeptical as to the device's ability to distinguish manual usage of a cellphone while driving from that done via voice command, or generated by a bot. Also, log files generated by certain smartphone applications could lack accuracy and reliability, or apps could launch automatically while the user is driving. Opponents contend that in addition to wrongly accusing drivers who are in compliance with applicable law, the textalyzer would result in less reliable data being collected, thereby actually defeating one of the central arguments in support of its use.

Will Use of the Textalyzer Pass Constitutional Muster?

Many traffic safety professionals believe it will be more difficult to curb distracted driving than drunk driving, since our phones are so fully enmeshed in our lives. There is a compelling and legitimate interest in protecting the public from the carnage on our roads caused by drivers using smartphones.

Opponents' fears that the textalyzer will not work as represented, or result in “false positives,” may be exaggerated given the breathtaking speed with which technology advances. However, there is some legitimacy to their contention that the textalyzer is more intrusive than a breath test. While the textalyzer is less physically intrusive than a blood test, one could argue that by virtue of what it may reveal, it is as intrusive or even more intrusive. There is also credence to the argument that, as contrasted with what is required before a motorist can be asked to submit to a breath test, the threshold for textalyzer use of only a crash occurring is significantly less. There are crashes which by their very circumstances strongly suggest distracted driving, including smartphone use. Accordingly, limiting warrantless use of the textalyzer to those crashes might make it more likely to pass constitutional muster.

Does use of the textalyzer, as presently proposed, strike an appropriate balance between protecting individual privacy needs and reducing distracted driving crashes, injuries and deaths? This issue will undoubtedly be decided in the courts once a state legislature gives its approval to the textalyzer.

Joel D. Feldman, a shareholder at Anapol Weiss, represents those who have been injured as well as loved ones of those killed as a result of negligence. He places a special emphasis on distracted driving-related truck and car crashes. In addition to his experience in personal injury law, Feldman also holds a master's degree in counseling to supplement his legal work. Contact him at [email protected].

Catelyn McDonough, an associate with the firm, focuses her practice on pharmaceutical, medical device and toxic mass tort litigation. Contact her at [email protected].