It was bound to happen. Last year, the owner of a self-driving vehicle claimed he was not driving while intoxicated (or under the influence) because the car was driving itself. The California Highway Patrol in San Francisco reported finding an individual passed out behind the wheel of a Tesla with a blood alcohol concentration of nearly twice the legal limit, which begs the question: Can you get a DWI in an autonomous vehicle?
When u pass out behind the wheel on the Bay Bridge with more than 2x legal alcohol BAC limit and are found by a CHP Motor. Driver explained Tesla had been set on autopilot. He was arrested and charged with suspicion of DUI. Car towed (no it didn’t drive itself to the tow yard). pic.twitter.com/4NSRlOBRBL
— CHP San Francisco (@CHPSanFrancisco) January 19, 2018
It seems like the first question should be whether a person is actually “driving” a self-driving or autonomous vehicle. Even though California uses the term “drive,” the reality is many DWI and DUI laws do not have the word “driving” in the description of the actual offense. Texas, for instance, focuses on whether or not the vehicle is being “operated” and not on whether the vehicle was being driven. Further complicating matters, “operation” is not defined in the statute. Over time, courts have handed down decisions that explain what operation means. While we’ve covered operation of a vehicle in detail previously, it basically means using the vehicle for its intended purpose (which has meant anything other than sitting in a running vehicle – and can be as little as putting your foot on the brake or the car being in neutral instead of park).
If merely putting your foot on the brake or having the car in drive has been enough to find that a person was operating a vehicle, then rest assured, courts are going to find owners of autonomous vehicles were operating their vehicles…at least for now.
To understand why you will be charged with a DWI in an autonomous vehicle, you have to understand the current state of autonomous technology available to consumers. There are five levels of autonomous driving, ignoring Level 0 which just means there is no automation. Most autonomous cars on the road are Level 2 vehicles. Here’s a look at the levels of automation.
At Level 0, the vehicle has no automation. Cars that require human input for all driving tasks fall into this category. Cars with standard cruise control also fall in this category.
Vehicles equipped with adaptive cruise control fall into Level 1 Automation. Adaptive cruise control is when the vehicle maintains a specific distance from the vehicle in front of it. In other words, the vehicle can speed up and slow down based on external factors. At Level 1 the driver is still required to maintain control of the vehicle. Vehicles in Level 1 may also have features to keep the vehicle in the lane. Level 1 vehicles will not control steering and speed simultaneously.
If the vehicle is able to control both steering and speed simultaneously, it falls into Level 2 Automation. Examples of vehicles that have Level 2 Automation include Tesla, Volvo with Pilot Assist, Mercedes with Drive Pilot, and Cadillac’s with Super Cruise. Every manufacturer has their own safety requirements built in, such as a requirement to keep your eyes on the road or touch the steering wheel every minute. While Level 2 Automation may allow for drivers to relax considerably and turn a lot of functions over to the car, Level 2 Automation only works in certain areas and under certain conditions. The drive must be attentive and take over if the conditions exceed the vehicle’s abilities.
At Level 3 Automation, the car takes over active monitoring of the environment. The Audi A8 with Audi AI Traffic Jam Pilot is reportedly the first vehicle to have achieved Level 3 Automation. Even at Level 3, the drive must be available to take over. Right now the Audi AI can take over completely at speeds under 37 mph when certain other conditions are met, but the human driver must take over if speeds reach 37 mph or if one of the other conditions are no longer met.
A Level 4 Automation, the vehicle can drive completely under most conditions but will require driver attention when something about the environment changes – poor weather for example.
Once we reach Level 5 Automation, the car does all the driving, all the time, regardless of condition.
Level 2 Automation: Cadillac Super Cruise
Level 2 Automation: Volvo Pilot Assist
Level 2 Automation: Mercedes Auto Pilot
Level 2 Automation: Tesla Autopilot
Level 3 Automation: Audi A8 Auto Pilot
Level 4 Automation Demo
The National Highway Traffic Safety Administration predicts by 2025 fully autonomous vehicles will be available at the consumer level. Once we have Level 5 Fully Autonomous vehicles on the roadways, the person sitting in the front left seat will no longer be the driver of the vehicle. With all driving functions under the control of the vehicle, every person in the vehicle will be a passenger. It will be at that point that autonomous vehicles can be used without fear of a DWI or DUI charge being filed.
What we don’t know from California Highway Patrol’s tweet is how long the vehicle had been stopped, whether the Tesla was still on, and what other facts they have to prove the accused was driving the vehicle. Still, the circumstantial evidence of being in the driver’s seat of a vehicle stopped on the Bay Bridge is certainly sufficient for an arrest. Those facts may or may not be sufficient to prove the case beyond a reasonable doubt. The case has not yet gone to trial. Here is more on circumstantial DWI cases.
DWI cases are rarely as straightforward as they seem. Things that could complicate matters including whether or not there were open containers in the car, how long the car had been stopped, and when the accused became intoxicated, if he was intoxicated.
If you or a loved one has been arrested on suspicion of DWI, call us at (817) 203-2220 for a complimentary strategy session. Our team of former prosecutors and Board Certified Criminal Lawyers are here to help. During this call we will:
You can also contact us online.