Should We Use The Textalyzer to Combat Distracted Driving In Ohio?

The last entry in this blog discussed the movement to decrease distracted driving in the United States.  Using cell phones while driving appears to be increasingly problematic.  In response, states are criminalizing the behavior, and groups like the Partnership For Distraction-Free Driving and the Distracted Driving Project are mounting campaigns which encourage drivers to not multi-task while driving.  Another idea to combat distracted driving is use of the ‘Textalyzer’.

Stop-texting-while-driving-300x200

What Is A Textalyzer?
The Textalyzer is computer program developed by Cellebrite.  Cellebrite sells software which enables investigators to unlock digital evidence from cell phones and other devices.  The Textalyzer is a relatively lean application which analyzes cells phone and provides reports regarding how and when the phones were used.

The Textalyzer could be used in various traffic law enforcement scenarios.  For example, it may be used if an officer is dispatched to an accident scene, makes a traffic stop, or responds to a report of a reckless driver.  In any of those situations, the officer could obtain the cell phone(s) of the driver(s) involved.  The officer would then run a cable from the driver’s phone to the officer’s laptop.  The Textalyzer program on the officer’s laptop would then examine the cell phone on-the-spot and report the findings to the officer.

Using The Textalyzer Raises Fourth Amendment Concerns
Using the Textalyzer involves two search and seizure issues. First, when the officer obtains the driver’s cell phone, the officer is seizing the driver’s property. Second, when the officer analyzes the driver’s phone with the Textalzer, the officer is conducting a search. The Fourth Amendment protects individuals from unreasonable searches and seizures, and searches/seizures conducted without a search warrant are presumed to be unreasonable.

Using the Textalyzer at the scene would be warrantless, so it would only be Constitutional if permitted by one of the recognized exceptions to the search warrant requirement. One exception to the search warrant requirement is consent: if a person consents to a search and/or seizure, a search warrant is not necessary. So long as the driver knowingly and voluntarily consents to the Textalyzer examination, it would not be prohibited by the Fourth Amendment. But what if the driver does not consent?

Implied Consent Could Incentivize Compliance With The Textalyzer
Ohio, like most states, has an ‘implied consent’ law for DUI/OVI. By driving in this state, drivers implicitly consent to a breath/blood/urine test if arrested for DUI/OVI in Ohio. If a driver revokes that implied consent by refusing the test, the driver’s license is suspended for at least one year. Courts have held that implied consent laws are Constitutional, so long as certain safeguards are in place.

The state could implement an implied consent law for the Textalyzer. Drivers would then implicitly consent to a Textalyzer examination in the event of an accident or traffic violation. Refusal to hand over one’s cell phone for Textalyzer analysis would result in a license suspension.

Balancing Public Safety And Individual Liberties
The Textalyzer and a new implied consent law could be an effective combination for combatting the problem of using cell phones while driving, but this combination involves potential invasions of privacy. Cell phones contain information considered to be private. The United States Supreme Court recognized this when it held search warrants are required for law enforcement to search cell phones (Riley v. California).

To protect individuals’ privacy, use of the Textalyzer would need safeguards. First, the Textalyzer must not be capable of accessing any content of the phone; only information regarding when and how the phone was used. Second, officers should only be permitted to request consent from a driver when the officer has probable cause to believe the driver committed a traffic offense and probable cause to believe the driver was using a cell phone at the time.

Third, a driver who receives a license suspension for refusing to submit to a Textalyzer must have a judicial hearing on the propriety of the suspension soon after the suspension begins. Fourth, a driver should not be charged with a criminal offense for refusing to submit to a Textalyzer. With these safeguards in place, the Textalyzer could combat distracted driving with minimal intrusion on individual freedom.