By Chris Mondics

The Philadelphia Inquirer

TRENTON, N.J. — Are drivers who text or talk on their cellphones a public menace?

State Sen. Jim Holzapfel (R., Ocean), who has seen his share of motorists crawling along in the passing lane as they furtively tap out a text, traffic whizzing by, thinks they are. So he's introduced legislation giving police the right to confiscate cellphones at auto accident scenes. If the measure is approved, it would be the first of its kind in the country.

Florida Highway Patrol Public Affairs Officer Joe Sanchez, second from right, shows Gov. Rick Scott a car that was recently involved in a fatal accident that is now being displayed in front of the Alonzo and Tracy Mourning Senior High School, Tuesday, May 28, 2013 in North Miami, Fla. (AP Photo/Wilfredo Lee)

Holzapfel says that under his bill, police at crash scenes would need a reasonable suspicion that talking or texting played a role. But once past that threshold, the police would have the ability to review the call log.

"I think it is reasonable for the officer to have access," he said. "I don't know that you can have a privacy expectation."

Holzapfel, a labor and employment lawyer who served as Ocean County prosecutor from 1987 to 1992, said his interest in the issue was spurred by reports of young drivers, mostly teens, who died in crashes while texting.

Given that the Senate and Assembly are up for election in November and that lawmakers will spend much of the summer and fall in their districts campaigning, Holzapfel said he doubted much would happen on the bill before the end of the year.

But he said that the problem was pervasive — the state Division of Highway Traffic Safety says there were 1,840 cellphone-related crashes in 2011 — and that it is time to start thinking about ways to change driver behavior.

Holzapfel said he and his wife had been rear-ended by drivers in the last year who emerged from their cars speaking into their cellphones.

"Anybody who is texting has to know that their ability to operate that car has been affected, and it has not been affected for the good," Holzapfel said.

Scott Vernick, a litigator at Center City's Fox Rothschild law firm who specializes in laws governing data security, intellectual property, and other matters, said proposals such as Holzapfel's likely breach the U.S. Constitution's Fourth Amendment ban on unreasonable searches and seizures.

"The question is, can you get it [the cellphone] without a warrant," Vernick said. "I am pretty sure it is not constitutional. I think we have a right to be free from unreasonable searches and seizures."

Yet Holzapfel maintained that reviewing cellphone information was no different from collecting other data at the time of an accident such as odometer readings, or, in the case of drunken driving, requiring a driver to undergo a Breathalyzer test. He said he might amend his cellphone law to make it more like drunken-driving statutes in that there would be a presumption that drivers who declined to give up their phones to police had been talking or texting.

Anne Tiegen, a senior transportation policy analyst with the National Conference of State Legislatures, said Holzapfel's bill was the only legislative proposal in the country that would give police authority to take a cellphone at the scene of an accident without a warrant. Indiana and Hawaii are considering legislation that would specifically prohibit police from seizing cellphones at accident scenes.

Ten states, including New Jersey, and the District of Columbia ban talking on cellphones while driving. In Pennsylvania, there is no statewide ban, but local governments have the option to ban from drivers talking on cellphones. Thirty-nine states, including New Jersey and Pennsylvania, ban texting and driving.

Holzapfel said that although bans were all well and good, penalties for texting in New Jersey were so minimal they likely had no effect. The fine for texting while driving is $100. His bill seeks to raise that to $300, and it would add points to the driver's record, potentially raising insurance rates.

In the end, though, public education probably is the most effective way to persuade drivers stay off their cellphones, he said.

"Education is probably the first thing," he said. "You can't arrest everybody."

Contact Chris Mondics at 609-989-9016 or cmondics@phillynews.com

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