Like other states, Arizona DUI law ties the criminal offense to the very human driver’s actual physical control of the vehicle while impaired by alcohol, drugs, or other intoxicating substance. But what if that “driver” is the car itself?
When an autonomous vehicle is on autopilot, it’s a legitimate question whether the person is actually controlling the vehicle or not. And if not, then why should the law concern itself with impairment?
Debate over autonomous-vehicle DUIs is bubbling up around the nation as we share more and more roadways with this new technology. It may be time to re-evaluate existing Arizona DUI law. At least with regard to the scope of “drive” and “actual physical control” as set forth in ARS § 28-1381 and § 28-1382.
Follow the Money
If a person cannot take control of the vehicle in any way shape or form, then why should drug or alcohol intoxication be a determining factor? How is DUI law violated? The liquor industry and myriad purveyors are backing automated vehicle production for obvious reasons – boost sales, reduce drunk driving, limit liability.
What Is an Autonomous Vehicle?
There are varying degrees of autonomous vehicles being designed and tested. Importantly, the NHTSA identifies six ascending automation levels:
1-Driver Assistance: The vehicle is driver-controlled “but some driving assist features may be included” in the design. Most late model cars fall into this category.
2-Partial Automation: The vehicle has “combined automated functions … but the driver must remain engaged with the driving task and monitor … at all times.” This describes Tesla’s Model S and Model X, as discussed later.
3-Conditional Automation: The “driver is a necessity, but is not required to monitor the environment.” This describes the refitted Uber SUV, also discussed later.
4-High Automation: The driver may have the option to take control, but the “vehicle is capable of performing all driving functions under certain conditions.”
5-Full Automation: “The vehicle is capable of performing all driving functions under all conditions.” Again, the driver may have the option of taking the controls.
Note there are many vehicles with No Automation (zero), for example a classic 1964 Mustang.
For ease of discussion, let’s focus on two broad categories. A semi-autonomous vehicle that has autopilot “On” with someone ready at the wheel, just in case (level 2 and 3). And a fully autonomous vehicle operating without anyone in the driver’s seat needing to take the controls (level 4 and 5). The former offers the better argument for leaving DUI law as is – the driver could take control at any time and should in any dicey situation. The latter? Not so clear cut. Levels 4 and 5 represent uncharted DUI territory.
DUI in Tesla Auto-Piloted Vehicle
When is the “D” missing in DUI? Consistent with NHTSA, Tesla insists its “autopilot is intended for use only with a fully attentive driver.” In a January 2018 DUI, the California suspect informed police his Tesla had been on autopilot. That did not prevent his arrest. With a BAC twice the legal limit, the driver was passed-out at the wheel in a lane of the San Francisco Bay Bridge around 5:30 p.m. on a Saturday with his Tesla at a complete stop.
That’s not an isolated DUI case. In December 2018, Redwood, CA, police chased a Tesla Model S traveling 70 mph with the driver asleep and autopilot on. It took officers seven miles to slow the vehicle to a stop. When police awakened the driver, they tested his BAC and arrested him on suspicion of DUI.
We are not at the point in Arizona law where relying on an autopilot defense to DUI charges has traction. Today, a necessary element of a DUI is that the driver had actual physical control of the vehicle. It doesn’t take a moving vehicle to get a DUI. A passed-out driver in a parked car with keys in the ignition and vehicle running is still considered to be in actual physical control. Still, sleeping it off does have merit and should be encouraged.
Relinquish Actual Physical Control and Sleep It Off
In Zavala v. State, 136 Ariz. 356, 666 P2d 456 (1983), the Arizona Supreme Court reversed defendant’s DUI conviction because he pulled off the road to sleep it off. A person is encouraged to sleep before attempting to drive off in an intoxicated state. In Zavala, the defendant remained behind the wheel, pulled off to the side of the road, and turned off the ignition. Because he “voluntarily ceased to exercise control over the vehicle prior to losing consciousness,” his DUI conviction was reversed. Why? Because “it is reasonable to allow a driver, when he believes his driving is impaired, to pull completely off the highway, turn the key off and sleep until he is sober, without fear of being arrested for being in control.”
After a few more cases,* we now have a non-exclusive list of factors to consider in determining whether defendant relinquished actual physical control of the vehicle and was therefore free to sleep it off in peace:
- Was the engine running?
- Was the ignition in the ON position?
- Where was the ignition key located?
- Where and how was the driver positioned when found in the vehicle?
- Was the person awake or asleep?
- Were the headlights ON?
- Where was the vehicle stopped?
- Did the driver pull off the road voluntarily?
- What was the time of day?
- What were the weather conditions?
- Was the heater or air conditioner ON?
- Were the windows UP or DOWN?
- What explanation of the circumstances does the evidence offer?
Is it a stretch to add a level 4 or 5 automated vehicle as another factor to the list? Is being intoxicated in an auto-piloted vehicle the same as sleeping it off?
*See State v. Sup. Ct. Greenlee, 153 Ariz. 119, 735 P2d 149 (Ariz. Ct. App. 1987).
State v. Love, 182 Ariz. 324, 897 P2d 626 (1995).
State v. Rivera, 207 Ariz. 69, 83 P3d 69 (Ct. App. 2004).
Automated Vehicles as Designated Drivers
“I wasn’t driving,” says the suspect, “my Tesla was on autopilot.” Some attorneys argue fully automated vehicles could eliminate the possibility of a DUI conviction. Others offer suggestions to limit DUI liability when an autonomous car is used as designated driver. For example, when planning to consume adult beverages on an evening out in your Tesla:
1- Program navigation while completely unimpaired. If already impaired, have someone sober program the navigation system.
2- Get in the back seat. The car senses occupants.
3- Have the vehicle drive occupants to the set destination. Do not offer any further input of any kind or intervene in any way.
Arguably, that might serve as legal basis to shift DUI liability away from a rear occupant who does not exercise actual physical control to the fully-automated vehicle (level 4 or 5) that is doing the driving. Or not. What prevents the rear-seat occupant from reaching and grabbing the wheel while under the influence? An occupant, or passenger, becomes a driver the moment he or she takes actual physical control of the vehicle – period.
DUI laws are meant to deter a person from getting anywhere near a steering wheel while impaired. At least arguably, the fact that someone in a level 4-5 autonomous vehicle could seize control at any moment is reason why no self-driving-car self-defense should be recognized. But what if the AI system was programmed to prevent the occupant from seizing control?
Three Deaths By Autonomous Vehicles
DUIs are not the only concern with autonomous vehicles. Since 2016, there have been at least three deaths in the U.S. caused by autonomous vehicles. We all need to be mindful that the self-piloted cars being tested on Arizona roads are experimental uses of AI.
The first known fatality of an auto-piloted car, or advanced driver-assistance system, was Joshua Brown (age 40) of Ohio. In May 2016, Brown was operating his Tesla Model S (level 2) on autopilot in Florida when he collided with an 18-wheeler and trailer.
The second fatality involved a refitted self-driving Uber Volvo SUV that hit a Tempe pedestrian, Elaine Herzberg (age 49), in March 2018. This was a level 3 system. The Uber safety driver, Rafaela Vasquez (age 44), was apparently unimpaired yet did not prevent the accident. Tempe police stated, “[I]t did not appear that the car slowed down as it approached” the victim.
In April 2018, a third fatal crash involved an auto-piloted Tesla Model X (level 2). Walter Huang (age 38) of San Mateo, CA, was killed when his Model X hit the highway divider while on autopilot. According to Tesla:
The driver had received several visual and one audible hands-on warning earlier in the drive and the driver’s hands were not detected on the wheel for six seconds prior to the collision. The driver had about five seconds and 150 meters of unobstructed view of the concrete divider with the crushed crash attenuator, but the vehicle logs show that no action was taken.
Seemingly none of the deaths involved alcohol, intoxicating substances, or altered state of mind. If any had, then existing DUI law should fit the circumstances. What if these had been fully automated vehicles (level 4 or 5) with intoxicated or impaired individuals inside, who had voluntarily relinquished actual physical control? And if the impaired individual inside is a mere passenger, then who should be held responsible for injuries to others and damages caused? These issues need to be sorted out before AI-operated vehicles become more prevalent than they already are.
Don’t expect a self-driving autonomous vehicle to excuse you from a DUI charge. We’re not there yet. Talk to an experienced DUI defense lawyer.