texting-while-driving.JPG

A woman driving a Jeep sport utility vehicle types out a text message on a cell phone while driving in this December 2009 file photo.

(Andrew Mills/The Star-Ledger)

By Ryan Hutchins and Matt Friedman/The Star-Ledger

TRENTON — License, registration and cell phone, please.

Police officers across New Jersey could be saying that to motorists at the scenes of car crashes if new legislation introduced in the state Senate becomes law.

The measure would allow cops — without a warrant — to thumb through a cell phone to determine if a driver was talking or texting when an accident occurred. It requires officers to have "reasonable grounds" to believe the law was broken.

Supporters say it could be an important tool for cops investigating crashes in a state where distracted driving causes lots of accidents and driving while using hand-held cell phones is illegal.

Opponents say it could touch off a contentious legal debate over whether giving officers such access violates a motorist’s right to privacy or protections against unreasonable search and seizure.

There were 1,840 handheld cell phone-related crashes in New Jersey in 2011, resulting in 807 injuries and six deaths, according to the state Division of Highway Traffic Safety,

"Think about it: The chances of the cop witnessing the accident are slim to none," said the bill’s sponsor, state Sen. James Holzapfel (R-Ocean), the bill’s sponsor, who has worked as a county and municipal prosecutor. "He’s dispatched, and by the time he gets there — unless they’re unconscious and the phone is in their hands, or some passenger says they were on the phone — then he’s got to do what? Subpoena the service to see if the phone was actively used or not?"

The measure is troubling to the American Civil Liberties Union of New Jersey, which said it is "likely susceptible to a constitutional challenge."

"This bill is problematic because it infringes on the privacy rights of citizens," said Alexander Shalom, the ACLU’s state policy counsel. "Our state and federal constitutions generally require probable cause before authorizing a search, particularly when it comes to areas that contain highly personal information such as cell phones."

Steve Carrellas, New Jersey representative of the National Motorists Association, said he doubts the bill would solve any problems and whether it would be implemented fairly.

"Here’s the bottom line: If you went all through what the bill is supposedly allowing, you still can’t determine if the person with the phone actually had a distraction that contributed to a crash," he said.

The bill has the support of police officers, according to Ken Drost, a sergeant in South Brunswick and the president of the Middlesex County Traffic Officers Association. He said officers do apply for warrants to search phones and can also simply ask for consent.

"It’s one of the questions you ask them: ‘Were you on your cell phone at the time of the crash?’ And, of course, they say ‘no,’ " he said. "Without the phone you really can’t tell."

If enacted, the measure would be at the center of the national debate over whether allowing an officer to access a phone is an invasion of privacy, said Jenny Carroll, an associate professor at Seton Hall Law school and an expert in criminal procedure and evidence.

"There’s no question, the Supreme Court, at some point, is going to have to weigh in on this issue," she said.

Law enforcement officials have argued that some phones delete text messages automatically, Carroll said. That’s why, she said, officers would want to look through a phone immediately.

Holzapfel said his intent is for the bill to allow officers to check text messages. They would be required to return the phone once they’ve reviewed the data.

Experts say the courts have weighed in over whether confiscating a phone without a warrant violates the Fourth Amendment search and seizure protections.

"All the Fourth Amendment requires is that an officer have probable cause before seizing evidence of a crime," said George Thomas, a professor at Rutgers School of Law-Newark. That’s why an officer can confiscate an open bottle of liquor without asking a judge’s permission, he said.

Holzapfel said he knows the legislation could face a legal challenge.

"To me, is it any different from an open bottle of liquor?" he said. "It may be an issue. But keep in mind that operating a vehicle is a privilege, not a right."

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