Will Self-Driving Cars Mean the End of DUI? Lawyers Weigh In

Like most things legal, it depends.

Getty Images / Alexander Koerner

Self-driving cars could be the norm in the not-so-distant future, and countries are starting to take notice of how laws will need a serious rethink once humans are no longer behind the wheel. Australia’s National Transport Commission took a major step toward embracing the driverless future this week with a new report that says laws against driving under the influence should no longer apply.

A big part of the challenge for rethinking driving laws is that, as currently written, a lot of them don’t just apply to when a person is actually driving. People can be charged with a DUI just for putting the key in the ignition while drunk or high — one man in Georgia was convicted in 2013 for being passed out in the bed of his pickup truck with the motor running and lights on while the vehicle was in a parking lot.

The idea behind the wide scope of those laws is to deter anyone from so much as sitting in the driver’s seat while intoxicated, let alone actually driving. But if getting in the front seat of an autonomous car has nothing to do with actually operating it, should those actions still be against the law? The NTC report concludes that those laws don’t make sense in the self-driving future.

The NTC considers that there should be clear exemptions from the drink- and drug-driving offenses concerning starting a vehicle and being in charge of a vehicle for a person who starts, or who is a passenger in, a dedicated automated vehicle. There is no possibility that a human could drive a dedicated automated vehicle so there is no safety risk associated with drink driving.
On balance, the NTC considers that provisions relating to starting and setting in motion should apply to a person who is starting a vehicle with high or full automation that allows manual driving. These offences exist because a person who starts or sets in motion a conventional vehicle while under the influence clearly has an intention to drive. They pose an imminent safety risk to themselves and other road users. In a vehicle with high or full automation, the person’s intention in starting or setting in motion the vehicle would most likely be to have the [automatic driving system] safely drive them home.

It remains to be seen whether Australian lawmakers will follow the report’s recommendations and change the laws accordingly. Either way, though, that still leaves the matter unresolved for the rest of the world. In the United States, lawyers have already made some attempt to sift through the laws currently on the books to figure out whether someone could get a DUI in a self-driving car. As attorney Christopher Coble explained in a 2016 post, the answer likely turns on whether courts would consider the person sitting in the front seat of a self-driving car to be in control of the vehicle.

Most state DUI laws require proof that the driver was in “actual physical control” of the vehicle. In the classic DUI case, officers see someone swerving or watch them drive up to a checkpoint, so there’s not much question about who is in control of the car. Where control of the vehicle comes into play it is normally in cases where someone passed out or fell asleep in their car, or the car was otherwise not in motion at the time. Courts vary on their interpretation of actual physical control, and take into account where the car was parked, where the driver was seated, whether it was running, and/or where the keys were. In some cases, someone who was not “driving” when contacted by police can still be charged with DUI.

And what might count as driving in the context of an autonomous car? Oregon DUI lawyer Michael Romano has a list on his blog, and it’s extensive. Turning the keys or pushing a dashboard button to start the engine would definitely count, but also doing things like manually programming the GPS while the car is moving, or even sitting in the passenger seat in a position to grab the wheel or brake if the car runs into trouble. As the law currently stands, it’s hard not to drive a car, even a self-driving one.

One point worth keeping in mind here is that, if an autonomous car is operating correctly, there shouldn’t be any reason for the police to pull it over on suspicion of driving under the influence — a self-driving car isn’t going to swerve between lanes just because its occupant is drunk. It’s certainly possible the car’s software could malfunction, but Coble suggests the human is likely going to be blamed for any reckless driving the police might see, especially if they are found to be intoxicated.

“Hopefully a self-driving car would be operating safely enough not to draw the attention of law enforcement,” he writes, “but if you’re pulled over while drunk in an autonomous vehicle, it’s probably going to be on you.”

Even then, though, it’s possible a self-driving car could get stopped at a checkpoint, or the police could see someone stagger drunkenly into their car with the intent to do nothing more than engage the autopilot and sit there. Romano offers some pointers on how to avoid a DUI in a self-driving car, at least until the laws get updated to reflect the coming autonomous reality.

Program all navigation and routes while completely sober, or have someone else program it who is not intoxicated or impaired.
Avoid the driver’s seat after becoming impaired or intoxicated. It would be ideal to stay out of even the front passenger seat, where it could be argued the occupant has the ability to control the car.
Have no interaction with the car other than to enter the vehicle, have the vehicle sense the entry of the occupants, and then have the vehicle drive the occupants to their destination with no further input or intervention required by the occupants.

Romano’s full breakdown, looking at how several states have dealt with relevant DUI topics, is available on what can only be called his law blog.

If you liked this article, check out this video about spherical tires for self-driving cars.