This question comes out of reading this New York Times article (quoted below), about a bill that would allow officers to use a "textalyzer" to digitally search phones for evidence that the phones had been handled recently:
The technology could determine whether a driver had used the phone to text, email or do anything else that is forbidden under New York’s hands-free driving laws, which prohibit drivers from holding phones to their ear. Failure to hand over a phone could lead to the suspension of a driver’s license, similar to the consequences for refusing a Breathalyzer.
The intention is behavior change:
“We need something on the books where people’s behavior can change,” said [Félix W. Ortiz, a Democratic assemblyman who was a sponsor of the bipartisan Textalyzer bill], who pushed for the state’s 2001 ban on hand-held devices by drivers. If the Textalyzer bill becomes law, he said, “people are going to be more afraid to put their hands on the cellphone.”
The US Supreme Court has unanimously ruled that when somebody is arrested, their phone can't be searched without a warrant.
But the bill’s authors say they have based the Textalyzer concept on the same “implied consent” legal theory that allows the police to use the Breathalyzer: When drivers obtain a license, they are consenting in advance to a Breathalyzer, or else they will risk the suspension of their license.
The analogy to the Breathalyzer is based on comparability of dangers, too:
Deborah Hersman, the president of the nonprofit National Safety Council and a former chairwoman of the National Transportation Safety Board, ... said the Textalyzer-Breathalyzer comparison was apt because looking at and using a phone can be as dangerous as driving drunk. “Why are we making a distinction between a substance you consume and one that consumes you?”
How far does this "implied consent" legal theory go? Can it be extended to mean that drivers' license applicants give "implied consent" to have their cars, homes, or body cavities searched in detail, or give "implied consent" to physical control by police (to enforce any failures to comply with an instruction), etc., if police request that power and find a suitably sympathetic audience in the General Assembly?
It's an old argument that increasing police search powers increases safety, because it allows the police to search out and stamp out whatever behavior creates the danger to others. Where's the line, if any, which limits the extent of how far that can go? What do people really consent to when applying for a driver's license?
Can "implied consent" be retroactive, such that if I have a New York driver's license today, that means I've given "implied consent" to whatever permissions the General Assembly grants police a couple years after I've gotten that license? If not, does a license renewal establish that "consent?" There is some precedent in that having gotten a NY license a few years ago does indicate consent to be bound by traffic laws including updates and changes that occur during the period of license validity. Is "implied consent" to searches one of the topics covered by that?
This is tagged for New York, but as the article notes:
If it were to pass in New York,... it could well spread in the same way that the hands-free rules did after New York adopted them.
So feel free to answer for other jurisdictions, if they are a better fit for your expertise, and note that in your answer.