EP15: Will the autonomous car kill the DUI defense industry?

Summary:

 In this episode we discuss the future of the DUI defense industry in light of the development of self-driving vehicles. We examine various aspects of the technology, including its current state, future development, legal implications, and consumer acceptance. We discuss that while the technology is still in its early stages and faces numerous challenges, its eventual implementation will likely lead to fewer traffic accidents and violations, potentially impacting the DUI defense industry. We explore the legal framework governing autonomous vehicles, emphasizing the potential challenges in defining "actual physical control" in Pennsylvania law as an example. We also analyze the economic feasibility of self-driving technology, considering the significant costs involved. Ultimately, we discuss that the future of the DUI defense industry will be significantly influenced by the pace of technological advancements, legal regulations, and consumer adoption of self-driving vehicles.

 Questions to consider as you read/listen:

1. What are the major challenges and opportunities presented by the development and deployment of autonomous vehicles, considering both technological and legal aspects?
2. How will the rise of autonomous vehicles affect the DUI defense industry, and what legal and practical considerations should be addressed?
3. How will consumer attitudes towards autonomous vehicles evolve, and what factors will determine the success of this technology in the future?

 

Long format:

 

Will the autonomous car kill the DUI defense industry?

 By Justin James McShane

Published: Dec 18, 2022

  

I have been asked to address the Boogie Man in the closet. Autonomous cars. The Henry Penny among the DUI defense industry believes that the dawning of the age of autonomous vehicles will the entire DUI defense community go away?

 Do you all have to suddenly become wills, trusts and estates lawyers?

 It is very easy to fall into the Henny Penny aspect of this because if these cars are on the road and they work, there goes all traffic accidents and all traffic stops. Perfect driving. Some have posited that when this age comes to be certainly the legislation will require the human who is in potential control of the vehicle not be impaired. But how does that get enforced? Without traffic accidents and traffic code violations, there are no reasons to stop the cars and discover if the person in actual physical control is incapable of safe driving. Given that the fleet age is 12 years. Does that mean that when these cars truly start rolling out, you have 12 years to find another choice of law sectors?

 I have been keenly in tune with the enabling legislation, NHTSA approvals and real-world results.

 There are three components of the question:

1. The current state of the technology
2. The future state of the technology
3. The current state of the legislation and the regulations through DOT, NHTSA and PennDOT.
4. Consumer adaptation

 

Current state of the technology

 Here is where the technology is now. I have friends such as Jacki Lee who has a Tesla and bought the “auto-pilot” technology.

• First, Tesla’s (and Fords and all others) currently require there to be pressure on the steering wheel for them to be in this mode, meaning that you cannot simply sit back when engaged and do other tasks, your HANDS (not just hand) have to be on the wheel.
• Second, when my friend first bought her Tesla with the technology, she bought wrist weights and hung them on the steering wheel so that she could do anything else she wanted. Everyone started doing that hack so Tesla fixed it by requiring variable input pressure on the steering wheel over time that is random. Other companies quickly followed. Why? They didn’t want to face liability for any crash as a product liability whereas if there was a crash when someone’s hands are on the steering wheel, they can argue to avoid that type of liability. I see that as being the norm for quite a while. No major manufacturer is willing to assume 100% liability.
• Third, the “auto pilot” is only enabled on highways. It does not work and will not work on stop and go traffic.

 

At the current, self-driving cars do not work well. That’s just the bottom truth. They do best on highways. According to NHTSA, there are zero cars that are fully autonomous right now in consumer hands on the roads. Currently, states permit a limited number of “self-driving” vehicles to conduct testing, research, and pilot programs on public streets and NHTSA monitors their safety through its Standing General Order https://www.nhtsa.gov/node/103486. 

 

The future of the technology

Here are the NHTSA levels of autonomous vehicles…

 

·         Level 1: An advanced driver assistance system (ADAS) aid the human driver with steering, braking or accelerating, though not simultaneously. An ADAS includes rearview cameras and features like a vibrating seat warning to alert drivers when they drift out of the traveling lane.

·         Level 2: An ADAS that can steer and either brake or accelerate simultaneously while the driver remains fully aware behind the wheel and continues to act as the driver.

·         Level 3: An automated driving system (ADS) can perform all driving tasks under certain circumstances, such as parking the car. In these circumstances, the human driver must be ready to retake control and is still required to be the main driver of the vehicle.

·         Level 4: An ADS can perform all driving tasks and monitor the driving environment in certain circumstances. In those circumstances, the ADS is reliable enough that the human driver needn't pay attention.

·         Level 5: The vehicle's ADS acts as a virtual chauffeur and does all the driving in all circumstances. The human occupants are passengers and are never expected to drive the vehicle.

 

According to them, we are only on level 2/3 on the consumer available level. They state that there are limited Level 4 vehicles in production, but they require a lot of testing. They say full Level 5 automation is 2025+. Here is more data to consider.

https://www.itransition.com/static/cda55ac34dac4236d295913450796a10/2_Projected%20autonomous%20vehicle%20registration%20share%20worldwide%20between%202021%20and%202031[1].svg

 

The above comes from statistia and the study was funded by Waymo so there is perhaps an optimistic bias. It is also important to note that this is all vehicles meaning test vehicles, fleet vehicles and business/consumer vehicles.

Why is Level 5 so far off?

Level 5 is so far off because actual trusted implementation of Level 5 in a stop and go environment (anything other than highways which are limited access meaning no pedestrians or random balls with random kids chasing them, generally no to low wildlife interruptions, generally straight with no cross traffic) is very very hard to model. The complexity of the chaos that is non-highway driving is unlimitedly complex.

 

https://www.itransition.com/static/886349d6fb512ac876b00188ee3e4476/3_Autonomous%20vehicle%20components[1].svg

 The camera sensors are still far from perfect. Poor weather conditions such as rain, fog, or snow can prevent cameras from clearly seeing the obstacles in the roadway, which can increase the likelihood of accidents. Additionally, there are often situations where the images from the cameras simply aren’t good enough for a computer to make a good decision about what the car should do. For example, in situations where the colors of objects are very similar to the background or the contrast between them is low, the driving algorithms can fail.

 Radar (Radio Detection and Ranging) sensors make up a crucial contribution to the overall function of autonomous driving: they send out radio waves that detect objects and gauge their distance and speed in relation to the vehicle in real time. Both short- and long-range radar sensors are usually deployed all around the car and each one has their different functions. While short range (24 GHz) radar applications enable blind spot monitoring, the ideal lane-keeping assistance, and parking aids, the roles of the long range (77 GHz) radar sensors include automatic distance control and brake assistance. Unlike camera sensors, radar systems typically have no trouble at all when identifying objects during fog or rain. There are also a lot of false positives where things are sensed but do not in fact exist.

 The pedestrian recognition algorithm definitely needs a lot of improvement, seeing as the automotive radar sensors used in today’s vehicles only correctly identify between 90% and 95% of pedestrians, which is hardly enough to ensure safety on the road. As well, the still widely-used 2D radars are not able to determine accurately an object’s height, as the sensors only scan horizontally, which can cause a variety of problems when driving under bridges or road signs. A wider variety of 3D radar sensors are currently being developed in order to solve these issues.

 Lidar (Light Detection and Ranging) sensors work similar to radar systems, with the only difference being that they use lasers instead of radio waves. Apart from measuring the distances to various objects on the road, lidar allows creating 3D images of the detected objects and mapping the surroundings. Moreover, lidar can be configured to create a full 360-degree map around the vehicle rather than relying on a narrow field of view. These two advantages make autonomous vehicle manufacturers such as Google, Uber, and Toyota choose lidar systems. Moreover, lidar can be configured to create a full 360° map around the vehicle rather than simply relying on a narrow field of view. These two advantages have led autonomous vehicle manufacturers such as Google, Uber, and Toyota to choose lidar systems for their vehicles. Since rare earth metals are needed in order to produce adequate lidar sensors, these sensors are much more expensive than radar sensors used in autonomous vehicles. Yet another problem is that snow or fog can sometimes block lidar sensors and negatively affect their ability to detect objects in the road. Lidar also is reported to have problems at nighttime and inclimate weather.

 

Inputless cars a reality or a myth

NHTSA right now says that left to be discussed and determined is whether at the time of Level 5 implementation whether vehicles with no input possibilities (pedals, gear shifts and wheel) will even be allowed. In my humble opinion, there will be no major manufacturers who are willing to accept 100% liability for any sort of crash by implementing inputless vehicles unless federal and state legislation is massively changed. Why would they? I don’t see NHTSA allowing for consumer vehicles to have no inputs. I think at least in the very beginning there will be a requirement that driver override at all times be possible.

 

Pennsylvania law intersection

This is important because in Pennsylvania the crime requires the accused to “shall not drive, operate or be in actual physical control of the movement of any vehicle”. The SCOPA of PA has declined to really adopt a bright line rule for actual physical control and instead allows for an amorphous “totality of the circumstances”. Under the totality of the circumstances approach the factors to be considered include “the location of the vehicle, whether the engine was running and whether there was other evidence indicating that the defendant had driven the vehicle at some point prior to the arrival of police on the scene.” Commonwealth v. Byers, 437 Pa.Super. 502, 506, 650 A.2d 468, 469 (1994).

 

The results of this lack of bright line rule are just wide to make it meaningless. Here are some examples.

Commonwealth v. Woodruff, 447 Pa.Super. *451 222, 668 A.2d 1158 (1995) (actual physical control found where defendant's car was on berm of the road fifty yards west of the store where he had purchased beer, the engine was running, the high beams were on and the car was protruding into traffic lanes); Commonwealth v. Trial, 438 Pa.Super. 209, 652 A.2d 338 (1994) (actual physical control found where defendant's car was diagonally across a roadway, defendant was in the car with his seatbelt on, the parking lights were on and the keys were in the ignition in the "on" position, although the engine was not running); Commonwealth v. Wilson, 442 Pa.Super. 521, 660 A.2d 105 (1995) (actual physical control found where defendant's car was down an embankment by the roadside, no keys were found, but the hood of the car was still warm on a winter night); Commonwealth v. Leib, 403 Pa.Super. 223, 588 A.2d 922, alloc. denied, 528 Pa. 642, 600 A.2d 194 (1991) (actual physical control found where defendant was asleep in the car in the middle of the road with the engine off); Commonwealth v. Bobotas, 403 Pa.Super. 136, 588 A.2d 518 (1991) (actual physical control found where defendant was parked in an alley on his way home with his engine running); Commonwealth v. Crum, 362 Pa.Super. 110, 523 A.2d 799 (1987) (actual physical control found where defendant was sleeping in his car on the side of the road with the engine and headlights on); Commonwealth v. Kloch, 230 Pa.Super. 563, 327 A.2d 375 (1974) (actual physical control found where defendant was asleep behind the wheel of a car parked along the side of the highway, protruding into a traffic lane with the engine and headlights on); Commonwealth, Dep't of Transp., Bureau of Traffic Safety v. Farner, 90 Pa. Commw. 201, 494 A.2d 513 (1985) (actual physical control found where defendant was behind the wheel in a traffic lane with the motor running and the brake lights activated); cf. Commonwealth v. Price, 416 Pa.Super. 23, 27, 610 A.2d 488, 490 (1992) (no actual physical control established where the defendant was sitting behind the wheel of a parked car; the engine was not running and the defendant had the keys in his hands).

 

As you can see from the above, as long as there is a capability of input, there will be DUI trials in PA. But you are saying to yourself “how will they legally stop the vehicle?” First, there are a host of technical non driving reasons to stop a car such as illegal tint, registration lapse, equipment issues, lighting issues, insurance lapse, false tipsters who claim bad driving or a drunk “behind the wheel” and even good old-fashioned BS like police saying “the car nearly hit a mailbox” thing. As long as there good faith mistake of fact reason then it is not necessarily illegal to stop the car.

 

Also given the current difficulties in non-highway driving of these vehicles, we have to stop and ask ourselves what type of driving behavior environment do DUIs come from? Non-highway (stop and go driving). We have very very few highway non accident DUIs. Most are in the stop and go environment.

 

Affordability of the technology

As we can see with the current 40% increase in cost that the Lighting F150 has undergone in the vastly overrated EV orgasm that is in existence today, the perceived end goal of Level 5 meets reality of the pocketbook and just like with the EV F150 Lightning the average consumer will centime to weigh cost benefit analysis. At some point consumers will say “it’s a beautiful dream but it costs too much” which is the current folly of the F150 Lighting EV right now.

 

 

This is a very “bare bones” version. Others are more complex. The systems required for autonomous driving can cost well beyond $10,000, while the top sensor being used by Google and Uber costs up to $80,000.

 

The future state of autonomous vehicle technology is very very expensive as we can see. $80,000 on top of the price of the vehicle really prices most folks out of the market entirely. For fully autonomous, inputless vehicles there is an array of technology involved. For example, Google's self-driving car project, called Waymo, uses a mix of sensors, lidar (light detection and ranging -- a technology similar to RADAR) and cameras and combines all of the data those systems generate to identify everything around the vehicle and predict what those objects might do next. This happens in fractions of a second.

 

The following outlines how Google Waymo vehicles work:

·         The driver (or passenger) sets a destination. The car's software calculates a route.

·         A rotating, roof-mounted Lidar sensor monitors a 60-meter range around the car and creates a dynamic three-dimensional (3D) map of the car's current environment.

·         A sensor on the left rear wheel monitors sideways movement to detect the car's position relative to the 3D map.

·         Radar systems in the front and rear bumpers calculate distances to obstacles.

·         AI software in the car is connected to all the sensors and collects input from Google Street View and video cameras inside the car.

·         The AI simulates human perceptual and decision-making processes using deep learning and controls actions in driver control systems, such as steering and brakes.

·         The car's software consults Google Maps for advance notice of things like landmarks, traffic signs and lights.

·         An override function is available to enable a human to take control of the vehicle.

 

That’s literally a lot of moving parts.

 

The current state of the legislation and the regulations through DOT, NHTSA and PennDOT

 Look above for a lot of discussion on the law of all of this. Additionally, we should consider that in 2020, Gov. Tom Wolf signed into law a bill to permit the driverless testing and deployment of autonomous cars and trucks on Pennsylvania roadways. Pennsylvania law has prohibited vehicle operation on state roadways without a human driver behind the wheel inside the vehicle. There still is no overarching federal law that covers Level 5 vehicles at the federal level. So, there is a lot of work to do. The industry says the biggest thing that would help self-driving cars is if they could communicate with each other and objects around them, but that also may not happen any time soon. In the last days of the Trump administration, the FCC took away most of the radio spectrum that cars were planning to use. Unless that changes, experts say it will be much more difficult for cars to communicate.

 

Consumer adaptation

 

Here is the latest report on the willingness to adopt self-driving technology: https://motional.com/mobility-report?gclid=CjwKCAiAkfucBhBBEiwAFjbkr9BiSmXJkMYaz27OGA2GdAP-Pq094NP37_v3j_BVnYWiha-A-sihFBoCNB0QAvD_BwE

 

While younger folks are open to the technology and the general public increasingly so, willingness or comfort needs to meet the reality of technological capability and price.

 Hopefully this answers your question. No, you do not need to brush up on the Rule Against Perpetuities.