Electronic device search provision tabled

Bryan O’Keefe, Political correspondent

The House has set aside a controversial provision that would allow police officers to search through drivers’ electronic devices without a warrant.

H.527, introduced by Rep. Martin LaLonde, D-South Burlington, would expand on Vermont’s 2014 law that banned the use of portable electronic devices while operating a motor vehicle. The new bill gained attention after LaLonde introduced a provision that stated drivers would “impliedly consent to an enforcement officer’s search of his or her portable electronic device.”

The implied consent provision has been tabled by the House Judiciary Committee pending a decision by the U.S. Supreme Court in the case of Bernard v. Minnesota, according to LaLonde’s blog.

LaLonde said he introduced the implied consent part of the bill to open the floor for discussion about how something of the sort could work, and that the feedback he received wasn’t entirely negative. “A lot of people said ‘we recognize this as a problem still, thank you for continuing to look into this, but we don’t like the implied consent,’” he said.

Lieutenant John Flannigan of the Vermont State Police was present the hearing of H.527, and said he was wary of the implied consent provision. “I don’t think we want to be in the business of getting into taking possession of people’s phones, just from a practical standpoint,” he said.

Officers might not know how to use the devices, Flannigan said.

Sergeant Allen Fortin of the Shelburne Police Department agrees with Flannigan’s concern with the notion of implied consent. “That, to me, is a little invasive,” he said.

Fortin also addressed concern with the potential liability if an officer accidentally damages an electronic device.

Allen Gilbert, executive director of the Vermont chapter of the American Civil Liberties Union, said the bill was “overbroad” and vague. He said there is less of a need for a warrantless search of cell phones because police can still get information from the cell carrier that would indicate if someone was using their cell phone.

The ACLU is glad the implied consent provision is no longer being considered, as it was “so patently unconstitutional,” Gilbert said.

LaLonde said he is considering other things that can be reworked into the bill, specifically adjustments to make Vermont eligible for funding from the National Highway Traffic Safety Administration.

This funding would allow the state to invest more in education surrounding distracted driving with the hopes of reducing incidents, he said. And he is doing more research to see how Vermont could be eligible.

Regardless of the Supreme Court ruling, “implied consent is definitely done for the session and may not see the light of day ever again,” LaLonde said.

An important component of the bill is the increased penalty for using a handheld device while driving. LaLonde wants to see two points tacked onto a license after the second violation. Under the current law, no points are added to a license after a violation, he said.

In addition, he wants to increase the violation for junior drivers. Under the current law, junior drivers receive no consequences until their third violation, LaLonde said. The new bill would implement a 90-day recall of a junior license after the second violation.

Under LaLonde’s bill, the state’s DUI fund would be altered to include revenue from distracted driving violations. The money from this fund would go into enforcement and education endeavors.