Collisions caused by drivers using cell phones have become a leading traffic safety concern. Because enforcement of laws restricting cell phone use while driving have presented law enforcement challenges, lawmakers in at least one state are now considering legislation to permit warrantless searches of mobile phones. The proposal currently being considered by lawmakers in Vermont could become a tool used by other states, but opponents of warrantless searches of cell phones worry about the threat to the privacy interests of drivers. This blog examines this proposal authorizing warrantless cell phone searches in light of these concerns.

The scope of the problem and level of concern is evidenced by the prevalence of distracted driving laws. Currently 46 states, D.C., Puerto Rico, Guam and the U.S. Virgin Islands have passed legislation that bans text messaging for all drivers according to the federal government’s distracted driving website Further, these distracted driving laws authorize primary enforcement of the texting ban in all but five of the states that have prohibited texting and driving by all motorists. Primary enforcement means that the officer can stop a driver and issue a citation for a cell phone violation even if the motorist has committed no other offense.

The pending legislation would authorize law enforcement officers to see a driver’s electronic device to determine if the driver was using the phone. The author of the bill has indicated that the law is not intended to permit a police officer to sit in the back of a squad car and rummage through the information on a driver’s phone. To the contrary, the sponsor of the bill told a media source that the goal is to permit the officer to ask to see the text log for the phone.

The impetus for this type of aggressive approach to the problem of distracted driving is based on the difficulty of enforcing cell phone laws. Even if the officer observes a motorist glancing down at a cell phone, the task of proving the driver was texting can be challenging. Drivers can claim to have been looking down while reaching for a cup of coffee or cigarette, which is not illegal, though it is unsafe. Essentially, this makes enforcement of texting bans contingent on the officer actually seeing the cell phone out in the open or the motorist admitting to a violation.

Proponents of the bill have suggested that the law is analogous to implied consent laws that authorize warrantless testing of breath, blood, or urine of suspected intoxicated drivers. Ironically, cases out of Pennsylvania and North Dakota currently pending before the U.S. Supreme Court will revisit the issue of whether implied consent laws authorizing warrantless blood and urine tests are constitutional.

Regardless of the decision in the implied consent cases to be decided by the U.S. Supreme Court, opponents of the proposal note a fundamental difference in authorizing the warrantless search of a cell phone. While evidence of intoxication will dissipate over time as the body metabolizes alcohol consumed by a driver, there is no comparable risk that evidence of texting will be lost with the passage of time. Based on this reasoning, there is no “exigent circumstances” (emergency) that necessitates use of a warrantless search because a search warrant served on the mobile phone provider can obtain the same information.

While the idea of warrantless searches of cell phones by police might raise significant privacy concerns, there is little dispute that cell phone use by drivers exact a terrible toll in terms of severe injuries and fatalities. If you are hit by a distracted driver, our Georgia auto accident lawyers are committed to holding negligent drivers accountable for the harm they cause.

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