The Impact of Self-Driving Cars on Impaired Driving Defense

Attorneys Barry F. Poulson and Robert S. Whims provide some insight into Self Driving Cars (SDCs) and the advance­ment of technology that is right on the edge of bringing these amazing new machines to market, juxtaposed against the criminal laws regarding drinking and driving.  Mr. Poulson, also a long-time computer scientist with decades of experience as an IT Management Consultant, has a B.A. in Computer Science from the University of Wyoming and a Masters in Software Engineering from Widener University, where he graduated first in his class; he currently teaches Computer Architecture and Design at Olivet College.  We posed some questions to Mr. Poulson about the new technology.

How do these cars work, and will it be available to the average driver?

SDCs are driving every day on testing grounds and on public streets.  These cars are truly autonomous—some even have no driver controls whatsoever! Players range from known car companies such as Nissan or Ford to new non-traditional “car companies” such as Google.  I have discussed SDCs with another criminal defense attorney, Robert Whims, and we concluded that SDCs will come sooner, be better, go faster, go farther on a battery charge, be smarter, and even less expensive than we expect, and will be safer than human drivers.  Once we understand the technology, the defense bar will be able to chart a course through the changing field of impaired driving defense.  We will experience a sea change.

Why do you think SDCs will change impaired driving defense?

We see a tremendous impact on impaired driving defense from the first flickering license plate light used by law enforcement to justify a stop through final adjudication involving SDCs as a provision of probation.  Defense attorneys have to take their message to the courts, the public, and the legislature, and be prepared to restructure their practices.

Autonomous vehicles drive themselves.  They vary in approach, but even today the Google SDC has no steering wheel, no pedals, no means whatsoever for the human passenger to interact with the car other than by telling it where to go.  Interaction is not unlike the “maps” app on a smartphone.  Tell it where to go, and the app guides the driver with a map, plus verbal queues such as where to turn.

So there is no driver, no “operator” at all?

Robert Whims says that Michigan’s definition of “operator” and “operating,” even today, contemplate an “automatic mode,” but it also leaves room for interpretation.  See, for example, the following section of the Michigan Vehicle Code:

Sec. 35a. "Operate" or "operating" means 1 or more of the following:

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(b) Causing an automated motor vehicle to move under its own power in automatic mode upon a highway or street regardless of whether the person is physically present in that automated motor vehicle at that time.  This subdivision applies regardless of whether the person is licensed under this act as an operator or chauffeur.  As used in this subdivision, "causing an automated motor vehicle to move under its own power in automatic mode" includes engaging the automated technology of that automated motor vehicle for that purpose. MVC 257.35a(b).

So, do passengers in Michigan become operators when they “press the button?”

The answer is, “yes … but.”  For example, what if the passenger calls via a system like OnStar and says, “Take me home.” Then, is the operator really the on-call representative? Or, is there even an operator at all?

What about other states?

Consider California’s definition as to operation, SB 1298:

An "operator" of an autonomous vehicle is the person who is seated in the driver's seat, or if there is no person in the driver's seat, causes the autonomous technology to engage.

SDCs are being tested in California now.  One was even pulled over for driving too slowly! California continues to struggle with the definition.  The National Highway Traffic Safety Administration (“NHTSA”) recently sent a letter to Google indicating that it considers the computer systems controlling its self-driving cars to be “drivers.” The letter marks a significant step toward allowing self-driving cars to be sold and operated on U.S. roads.  Google’s efforts to create a fully automated vehicle without a steering wheel or pedals had previously been stymied by California regulations stipulating that a “driver” must be behind the wheel in case of emergency.  NHTSA essentially overrules that.  “If no human occupant of the vehicle can actually drive the vehicle, it is more reasonable to identify the ‘driver’ as whatever (as opposed to whoever) is doing the driving,” the letter reads. “We agree with Google its SDV [self-driving vehicles] will not have a 'driver' in the traditional sense that vehicles have had drivers during the last more than one hundred years.”

In Michigan, what might happen if the police stop an SDC with an intoxicated passenger?

It looks like the passenger could be deemed an operator if the passenger pressed a button, but if travel were initiated by a remote technician, defense attorneys should argue that is not sufficient. Comparably, if a bartender tells the car, “take him home,” is that operation?

What are some benefits of SDCs?

Self-driving cars will save lives and prevent injuries. MADD claims that there is a drunk driving injury every 12 seconds.  With self-driving cars, this carnage can be prevented.  Consider the cost savings to our clients and to society.  For example, in a hypothetical drunk driving 3rd incident, the estimated cost is $20,000 (up-front costs, defense attorney, cost of trial, experts, witnesses). Suppose the Defendant is convicted and sentenced to two years, then parole.  Further, considering total lost wages while in prison, cost to incarcerate, divorce, loss of home, and reduction of wages over the next four decades as an unemployable felon, the costs can approach $200,000, $500,000, or more.

Compare the added cost of an SDC with upkeep to a classical car.  Say $50,000 over five years? We can structure a plea such that the Defendant agrees to not drive—but may use an SDC—with a deferred sentence.  The sentence can sport a major “stick,” but with a “carrot” of a clear record at the end of five years.  There is also the potential of analyzing the prison population for candidates for sentence revision, subsequent release, but with a requirement to travel by SDC.

What should the next steps be in Michigan?

Defense attorneys have to enlist the help of prosecutors, courts, NGO’s, state agencies, child advocacy groups, and legislators.  We need Police, Sheriffs, and the MSP on board. MADD has to be won over. There will be a financial impact on PBT companies. Alcohol and drug counselors and rehabilitation facilities could see reduced populations. Some would welcome a return to outright prohibition, and will invent ways to fight SDCs and legal reform.  Laws must be enacted that protect the public by defining the user of an SDC as explicitly not an operator—that there is no operator.  That not only prevents arrest when someone is just riding in an SDC, but it allows alternatives to incarceration.  Whims reminded me that “Good cases make good law.” OWI attorneys have to be alert for a case where their defendant has to travel for work, where the family is dependent on this work for their livelihood, and where the defendant is otherwise law-abiding.  OWI attorneys know their judges.  There has to be a courageous judge who is willing to save lives on the streets, and save a family, by sentencing a defendant to a deferred sentence with a condition that permits riding in an SDC.  You need a client who can afford an SDC and is expected to comply.  The argument has to be made that drunk drivers restricted to use only SDCs could continue to work, would not lose their homes, could raise their children, and would not burden taxpayers with the cost of prosecution and incarceration.

Assembling data on the various impacts of impaired driving will support implementation. Judges, legislatures, and the general public need to know how much waste will continue to occur until SDCs become part of impaired driving case resolution.  SDC riders will be safer than most drivers.  Not only will we see a reduction in highway carnage, we should see lower insurance rates. Insurance companies should be natural allies in the SDC initiative.  Marginalized populations will have transportation.  Blind.  Disabled.  Seizure disorders.  All gain a new freedom.  The elderly will no longer be singled out for driving restrictions.

Ultimately, drivers will require a special license endorsement NOT to let their cars self-drive.  Laws will eventually require all cars to be self-driving-capable, with the ability to take over for a driver who, for example, might suffer a stroke.  Or, who gets a cell phone call.

The day an SDC wins the Indianapolis 500 is the day we will all know that the practice of DUI law will have changed forever.

by Neil Leithauser
Associate Editor