Legal Alerts Apr 04, 2018

The First Self-Driving Death

Mitigating Risks, Regulatory Update and a Tale of Two States

The First Self-Driving Death

California’s regulations governing the testing and deployment of autonomous vehicles go into effect this week. The regulations are a product of an open process that involved public comments, but also patience and perseverance by the State as it sought to balance innovation promotion with public safety. This is no easy task with a technology that has the opportunity to enhance mobility and economic opportunities for a community, but is also so new that there are no minimum federal safety standards in place.

Risks from Needed Testing of Automated Vehicles

All this in the wake of the tragic, first-known automated vehicle fatality involving an Uber vehicle engaged in autonomous mode last month in Arizona. The accident highlights the real risks that states and local governments need to consider and mitigate. The National Transportation Safety Board’s investigation will be an important part of this evaluation process, in addition to considering infrastructure safety for all vehicles, including an anticipated future with automated vehicles. Learn more about planning and policy considerations around automated vehicles in this multi-discipline Best Best & Krieger LLP webinar.
The Uber accident video brings to light two important issues in the ongoing consideration of regulations: 

  1. While the NTSB investigation is still ongoing, observers noted that it does not appear the vehicle detected the pedestrian as she crossed the road. As needed, real-world testing moves forward, the accident will likely lead to considerations around whether testing should be limited to certain areas of a community, roads and times of day — and if signs delineating “AV Testing Corridors” are needed to reduce liability concerns  and prevent accidents. 

  2. Again, deferring to the ongoing NTSB investigation, it appears the designated operator in the vehicle may have been distracted by a screen. Whether humans can be expected to effectively take back control of an automated vehicle raises “Level 3” issues (where humans need to be ready to take back control in the event of a disengagement of the automated technology) and “Levels 4 and 5” (highly automated vehicles where systems and software will fully engage in monitoring the environment and operating the vehicle without the need for human intervention) technology considerations. For more information on the levels of automation adopted in the federal automated vehicles policy, click here

Different Approaches to Regulating Automated Vehicles

 Three different regulation approaches are emerging across the country:

  • passing laws,
  • enacting executive orders and
  • waiting and seeing. 

Local governments are also considering initiatives to promote testing within an adopted vision for the operation of automated vehicles in their communities. For additional thoughts on the role that local governments play in the long-term success of automated vehicles, you can read comments filed to the National Highway Traffic Safety Administration by BB&K on behalf of national organizations.
As states and local governments consider regulatory action on automated vehicles, it is also important to note there are two bills making their way through Congress, including the “SELF DRIVE” Act (H.R. 3388, which has passed the House) and the “AV START” Act (S. 1885, which has passed the Senate Committee, Science and Transportation Committee and is pending consideration in the Senate). These proposed laws will impact states’ and local governments’ abilities to regulate automated vehicles and demonstrate the opportunity to be proactive at both the Congressional and agency level.
California and Arizona offer two different approaches to the regulation of automated vehicles testing and deployment. Arizona has chosen to take the Executive Order route by enacting two orders to date: Executive Orders 2015-09 and 2018-04. California has taken the legislative path through the enactment of Vehicle Code section 38750, which led to the development of the new DMV regulations now in effect.
Here is a brief comparative summary of important issues addressed by each state’s approach:
Permitting Process
In Arizona, Executive Order 2018-04 requires that a written statement be submitted to the Arizona Department of Transportation for the testing or operation of self-driving vehicles. The statement must include certain acknowledgements, including that the automated vehicle is capable of complying with all applicable traffic and motor safety laws, and is capable of achieving a “minimal risk condition” in the event of system failure. It is interesting to note the Order expressly states it does not establish a right to operate an automated vehicle in Arizona. Such a statement has likely already proven prudent by allowing the State to prohibit further testing by Uber in Arizona, but may not harmonize with preemption language in the proposed bills noted above before Congress.
While California does address both the testing and commercial deployment of automated vehicles, the regulations address such circumstances in two different sections. (Note: California’s definition for post-testing “deployment” includes providing transportation for a fee, in addition to leasing and sale of automated vehicles.)
California takes a different approach and requires that testing and operation permits be approved by the DMV before the testing and operation of automated vehicles is allowed. A decision on whether the testing permit is sufficient or deficient is to be provided within 10 days and the term of a permit is 2 years with the potential for renewal. For the deployment of automated vehicles beyond testing, the DMV has 30 days to make its determination. In consideration of safety concerns and to ensure only responsible companies are testing, the regulations prohibit automated vehicle testing unless the manufacturer has first conducted tests under controlled conditions that closely simulate the public roads where testing will occur. There are additional financial requirements (currently $5 million under Vehicle Code section 38750(c)(3) in the form of insurance, self-insurance or a surety bond) that a manufacturer must demonstrate in the application and throughout the time vehicles are on California roads.
Requirements for Test Drivers
Under the new California regulations, there are specific requirements for test drivers, including qualifications related to safe driving records and that a test driver “knows” the limitations of the automated vehicle’s technology and is capable of safely operating it in all conditions under which it is being tested on public roads. The regulations go on to require that a manufacturer testing in California maintain a training program for test drivers and that the course outline and description be provided to the DMV.
The Arizona Executive Order does not contain any express requirements for test drivers, but does require compliance with all applicable state traffic and motor safety laws and regulations.
Law Enforcement Interaction Plan
In both states, the role of law enforcement is addressed, especially for the circumstances under which the testing or operation of automated vehicles occurs without a driver or operator in the vehicle. A recent story about an automated vehicle being pulled over by a police officer highlights issues law enforcement faces, including how to ticket a vehicle, how to stop a rogue vehicle and whether data from a vehicle can be used to overturn a decision to issue a ticket. (It is interesting to note that for the post-testing “deployment” of automated vehicles in California, vehicles must be equipped with a data recorder capable of recording all sensor data for 30 seconds before an accident and that such data can be accessed and retrieved by a commercially available tool.)
Under the Arizona Executive Order, the Arizona Department of Public Safety will issue a law enforcement interaction protocol. The protocol is to be developed in coordination with law enforcement and manufacturers testing in the State. Once the protocol is implemented, those testing on Arizona roads will be required to submit a statement acknowledging that a manufacturer has implemented a plan consistent with the protocol. In the meantime and until the protocol is released, testing and operation may continue on Arizona roads.
The California regulations provide additional requirements for testing without a driver or operator in the vehicle. This includes verifying there is an operational two-way communications link. Further, a manufacturer must provide a law enforcement interaction plan that meets the requirements of the California regulations to both the California Highway Patrol and local law enforcement where the testing or operation of vehicles without a driver or operator will occur.
The above comparison between California and Arizona is only a taste of the many important considerations that come with the increased testing and deployment of automated vehicles on our roads. There are pros and cons to both approaches that should be carefully considered by states and local governments seeking to adopt their own testing and operation regulations and allowing testing within their jurisdictions
There is no one-size-fits-all approach at this early stage of development, but there is an important opportunity to enhance transportation in our communities. These innovations, which can only come via collaboration between the public and private sectors, will hopefully help to achieve safer, more efficient, multi-modal and smoother roads of tomorrow today.
Additional Reading

For more information on BB&K’s work on smart communities and the incorporation of advanced transportation technologies into our transportation network, please contact the author of this Legal Alert in the firm’s Transportation practice group, or your BB&K attorney.
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Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

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