Autonomous Vehicles and Driving Under the Influence: Examining the Ambiguity Surrounding Modern Laws Applied to Future Technology

• Publication year: 2022

53 Creighton L. Rev. 397. AUTONOMOUS VEHICLES AND DRIVING UNDER THE INFLUENCE: EXAMINING THE AMBIGUITY SURROUNDING MODERN LAWS APPLIED TO FUTURE TECHNOLOGY

AUTONOMOUS VEHICLES AND DRIVING UNDER THE INFLUENCE: EXAMINING THE AMBIGUITY SURROUNDING MODERN LAWS APPLIED TO FUTURE TECHNOLOGY

-Callie A. Kanthack '21

I. INTRODUCTION

According to the U.S. Department of Transportation's National Highway and Traffic Safety Administration ("NHTSA"), in 2017, 10,874 people were killed in drunk driving related accidents, meaning one person was killed every forty-eight minutes in the United States. ^[1] In 2018, liquor industry groups began supporting the acceleration of the production of self-driving vehicles in the hopes of eradicating drunk driving related deaths while simultaneously increasing sales inliquor. ^[2]

Self-driving or autonomous vehicles are vehicles that do not require human intervention. ^[3] Although fully autonomous vehicles are not yet available to consumers, Tesla and other companies are routinely testing technology for such vehicles. ^[4] Elon Musk, Tesla's Chief Executive Officer, stated that Tesla cars will be self-driving by 2020; unfortunately, despite Musk's optimism and recent rise in stock prices, Tesla has yet to release a fully self-driving vehicle. ^[5] Regardless of the exact date of release to consumers, the transition to fully autonomous vehicles remains inevitable. ^[6]

Autonomous vehicles may notably provide a solution to the devastating societal costs of driving under the influence. ^[7] However, the legality of using or operating a self-driving vehicle must be considered. ^[8] Under current statutes, it remains unclear whether an intoxicated person operating an autonomous vehicle would be guilty of driving under the influence ("DUI"). ^[9] Although fully autonomous vehicles do not require human intervention, an intoxicated person may be charged with a DUI for maintaining actual physical control ("APC") over the vehicle. ^[10] Some states recently amended the definition of operator, thus creating potential liability for the person engaging the technology despite having no actual control over driving functions. ^[11] The possibility for operators of autonomous vehicles to be charged with DUI offenses not only contradicts current public policy surrounding DUI statutes, but it also prevents states from experiencing the revolutionary safety benefits. ^[12] Creating exemptions in DUI statutes for operators of autonomous vehicles will legally allow and consequently encourage the use of self-driving vehicles. ^[13]

This Note will begin by differentiating the levels of autonomy and explaining the emerging technology behind autonomous vehicles. ^[14] Next, this Note will examine recent foreign, national, and state legislation regarding autonomous vehicles. ^[15] This Note will then discuss the potential safety benefits of using autonomous vehicles. ^[16] Then, this Note will examine DUI statutes specifically in regards to APC over a vehicle. ^[17] This Note will further consider different tests applied by courts in the United States for determining APC. ^[18] Then this Note will argue that, under current laws, whether an intoxicated person operating an autonomous vehicle is guilty of DUI remains ambiguous. ^[19] This Note will claim that such ambiguity creates a barrier in achieving the safety benefits of autonomous vehicles by making it unlawful to use an autonomous vehicle regardless if an intoxicated person never exercises the driving functions. ^[20] This Note will suggest that states should enact legislation that creates exemptions for autonomous vehicles from statutes that penalize a human driver under the presumption that a human is in control of the vehicle. ^[21] Then this Note will acknowledge the potential issue of adopting legislation for fully autonomous vehicles without distinguishing between Level 4 and Level 5 vehicle capabilities. ^[22] Finally, this Note will consider the possibilities of permitting an intoxicated person to operate a Level 4 vehicle equipped with Driver Alcohol Detection System for Safety ("DADSS") technology. ^[23]

II. BACKGROUND

A. THE TECHNOLOGY AND CAPABILITIES OF AUTONOMOUS VEHICLES DETERMINE THE LEVEL OF AUTONOMY

Engineers apply the term autonomous to computer-controlled systems that determine choices about their own actions and are therefore able to direct their own activity. ^[24] Autonomous vehicles are essentially self-driving, requiring virtually no human intervention or input. ^[25] Autonomy in motor vehicles began in the 1930s and has progressed throughout the decades from no level of automation to a level of no human involvement. ^[26]

Self-driving or autonomous vehicles are classified by the level of autonomy. ^[27] Currently, the U.S. Department of Transportation recognizes six distinguished levels of autonomous vehicles ranging from Level 0 to Level 5. ^[28] The lowest level, Level 0, does not entail any automation; whereas, Levels 1, 2, and 3 including increasing levels ofautonomy. ^[29] These levels are referred to as semi-autonomous. ^[30] Semi-autonomous vehicles feature technology such as cruise control, anti-lock brakes, lane-keeping, weather alerts, and assisted steering. ^[31] The current level of autonomy for vehicles available to consumers is Level 3. ^[32]

Achieving Level 3 automation remains a significant technological milestone from the capabilities of Level 2 vehicles. ^[33] The autopilot technology in Level 2 vehicles provides features enabling the vehicle to brake, steer, accelerate, and correct lanes without human intervention. ^[34] In comparison, Level 3 vehicles embody a degree of autonomy characterized by decision-making that allows the vehicle to change lanes and successfully pass other vehicles. ^[35]

Levels 4 and 5 are considered fully autonomous vehicles, because their operation would not require any human intervention or input. ^[36] Fully autonomous vehicles would only require a human to choose the destination. ^[37] The difference, however, between Level 4 and Level 5 is the ability of a human driver to maintain or regain control of the vehicle. ^[38] Level 4 vehicles include fallback capabilities notifying a human operator of malfunctions and enables the operator to regain manual control of driving functions. ^[39] Level 5 vehicles do not include the fallback features necessary for human intervention such as a steering wheel or driver controls. ^[40]

The technology required for autonomous vehicles depends on the vehicle manufacturer and the desired level of autonomy. ^[41] Most semi-autonomous vehicles operate through subsystems and Automated Driving Systems ("ADS"). ^[42] Subsystems are separate systems that control specialized driving functions such as steering, braking, antilock brakes, and traction control. ^[43] ADS is a form of emerging technology found in advanced semi-autonomous vehicles that controls lane-keeping, parking, and adaptive cruise control. ^[44] Tesla's Autopilot system on its most recent model features similar capabilities. ^[45]

Fully autonomous vehicles operate through numerous technological systems that allow vehicles to react to changing conditions and make decisions absent human intervention. ^[46] Many fully autonomous vehicles rely on pre-built maps, Global Positioning Satellite ("GPS"), annotated digital maps, and a computer coordinating system. ^[47] The position of the vehicle, routes, traffic signals, and objects around the vehicle are determined by the computer coordinating system. ^[48] In addition, vehicle-to-vehicle technology provides a network of data shared from vehicles within close proximity regarding speed, positions, anddriving conditions. ^[49] Several companies including Ford, Amazon, and Google primarily use Light Detection and Ranging ("LIDAR") technology, claiming that LIDAR is a critical aspect of autonomous vehicular safety. ^[50]

All autonomous vehicles rely on a coordinating computer system which combines data retrieved from sensors, cameras, and radars. ^[51] The computer system uses algorithms to determine the safety and legality of the vehicle's next movement. ^[52] Although the same technology operates in Level 4 and 5 vehicles, the distinction is merely the ability for a driver to regain or maintain actual control of the vehicle. ^[53] This distinction, however, bears significant potential legal implications. ^[54]

B. LAWMAKERS IN THE UNITED STATES SUPPORT THE DEVELOPMENT AND USE OF AUTONOMOUS VEHICLES TO INCREASE HIGHWAY SAFETY BY REDUCING THE NUMBER OF DEATHS AND ACCIDENTS CAUSED BY HUMAN ERROR

KPMG International released an Autonomous Vehicle Readiness Index which ranks twenty-five countries based on policy and legislation, technology and innovation, infrastructure, and consumer acceptance of autonomous vehicles. ^[55] The United States, although ranking fourth overall, was ranked ninth in regards to policy and legislation. ^[56] Some nations ranking below the United States overall have recently enacted legislation to increase readiness for the use of autonomous vehicles by consumers. ^[57]

In 2016, the U.S. Department of Transportation's National Highway and Transportation Safety Administration ("NHTSA") announced a commitment of approximately four billion dollars over a period of ten years to accelerate the development of autonomous vehicles. ^[58] The NHTSA released guidelines in September 2017 for the safe testing and...