Can You Get a DUI in a Self-Driving Driverless Car?

Can You Get a DUI in a Self-Driving Driverless Car? 2017-04-14T19:22:59+00:00

As evolution of the automobile continues and widespread use of driverless technologies are expected within the next few years, people will use the technology for various reasons and purposes. Some drivers may wish to use self-driving features to shorten driving times on their commute. Others may wish to use Tesla’s Autopilot to increase safety. Some people will undoubtedly look to having a driverless designated driver. This raises the question: Can you get a DUI in a self-driving car?

DUI Driverless Car

How Most States Define “Driving”
In Driving Under the Influence (DUI)

The crime of drunk driving is has many legal titles throughout the United States. There’s both Operating While Intoxicated (OWI) and the lesser-offense of Operating While Visibly Impaired (OWVI) in Michigan, Driving While Impaired (DWI) in New York and Texas, Driving Under the Influence of Intoxicants (DUII) in Oregon, and the most common: Driving Under the Influence (DUI) in California. All states have some definition for what it means to “drive” or “operate” a vehicle while intoxicated or impaired. With regard to “driving,” most definitions around the country are straightforward. If the vehicle is in motion and an occupant is doing anything to steer, navigate, accelerate, decelerate, or brake the vehicle, they are considered to be driving it. When considering DUI in the context of a self-driving or driverless car, it goes without saying that there would be no “driving.” In a true driverless or self-driving car, or a car using Tesla’s Autopilot system, we would assume that an occupant of a vehicle would not be doing anything to actually drive the car in a traditional sense. They would be a passenger, but a passenger who somehow communicates to the vehicle where they want to go– and perhaps a preference for which route to take.

Actual Physical Control

Any manner of actually driving while intoxicated or impaired would be illegal in the United States. Therefore the analysis is really of the word “operation” because one could minimally operate a vehicle without actually driving it, and the question would be whether operation alone could result in a DUI in a driverless or self-driving vehicle. The following list of examples provides an overview of how several states have defined “operation” of a motor vehicle.

  • Alabama: “Actual physical control” was initially defined as “exclusive physical power, and present ability, to operate, move, park, or direct whatever use or non-use is to be made of the motor vehicle at the moment.” Key v. Town of Kinsey, 424 So.2d 701, 703 (Ala.Crim.App.1982) (citing State v. Purcell, 336 A.2d 223 (Del.Super.Ct.1975)). The court set out a three-part test for obtaining a conviction: 1. Active or constructive possession of the vehicle’s ignition key by the person charged or, in the alternative, proof that such a key is not required for the vehicle’s operation; 2. Position of the person charged in the driver’s seat, behind the steering wheel, and in such condition that, except for the intoxication, he or she is physically capable of starting the engine and causing the vehicle to move; 3. A vehicle that is operable to some extent.” Id. at 703-04. The Alabama Supreme Court later abandoned this strict, three-pronged test, adopting instead a “totality of the circumstances test” and reducing the test’s three prongs to “factors to be considered.” Cagle v. City of Gadsden, 495 So.2d 1144, 1147 (Ala.1986).
  • Arizona: Further analyzing the “sleep it off” policy is the Arizona Supreme Court’s case of Zavala v. State, 136 Ariz. 356, 666 P.2d 456 (1983), which not only encouraged a driver to “sleep it off” before attempting to drive, but also could be read as encouraging drivers already driving to pull over and sleep. In Zavala, an officer discovered the defendant sitting unconscious in the driver’s seat of his truck, with the key in the ignition, but off. The court concluded that “while the defendant remained behind the wheel of the truck, the pulling off to the side of the road and turning off the ignition indicate that defendant voluntarily ceased to exercise control over the vehicle prior to losing consciousness,” and it reversed his conviction. The Court reached this conclusion based on its belief that “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.” The Arizona Court of Appeals has since clarified Zavala by establishing a two-part test for relinquishing “actual physical control”-a driver must “place his vehicle away from the road pavement, outside regular traffic lanes, and … turn off the ignition so that the vehicle’s engine is not running.” State v. Superior Court for Greenlee County, 153 Ariz. 119, 735 P.2d 149, 152 (Ct.App.1987). This view, at least insofar as it excuses a drunk driver who was already driving but who subsequently relinquishes control, might be subject to criticism as encouraging drunk drivers to test their skills by attempting first to drive before concluding that they had better not. In Arizona, based on State v. Love, 182 Ariz. 324, 897 P.2d 626 (1995) and State b. Rivera, 207 Ariz. 69, 72, n.3, 83 P.3d 69, 72 (App. 2004), the current jury instructions ask the jury to examine the following factors:
    • “In determining the defendant was in actual physical control of the vehicle, you should consider the totality of circumstances shown by the evidence and whether the defendant’s current or imminent control of the vehicle presented a real danger to himself or herself or others at the time alleged. Factors to be considered might include, but are not limited to:
      • whether the vehicle was running;
      • whether the ignition was in the on position;
      • where the ignition key was located;
      • where and in what position the driver was found in the vehicle;
      • whether the person was awake or asleep;
      • whether the vehicle’s headlights were on;
      • where the vehicle was stopped;
      • whether the driver had voluntarily pulled off the road;
      • time of day;
      • weather conditions;
      • whether the heater or air conditioner was on;
      • whether the windows were up or down; and
      • any explanation of the circumstances shown by the evidence.
    • “This list is not meant to be all-inclusive. It is up to you to examine all the available evidence in its totality and weigh its credibility in determining whether the defendant was simply using the vehicle as a stationary shelter or actually posed a threat to the public by the exercise of present or imminent control over it while impaired.”
  • Georgia: In a 2013 case, it was sufficient to support a defendant’s conviction of driving under the influence of alcohol to the extent it was less safe to do so when the defendant was discovered by police passed out on his stomach in bed of pickup truck improperly parked in supermarket parking lot, with lights on and motor running, defendant admitted to having been drinking and did not know where he was, and defendant refused to perform field sobriety tests. Strickland v. State, 746 S.E.2d 204 (Ga. Ct. App. 2013). In another 2013 case, the Court held that “a defendant may be charged and convicted of driving under the influence of alcohol to the extent that it is less safe for her to drive notwithstanding the fact that the defendant was in a parked vehicle when she appeared to be asleep in driver’s seat of the vehicle with the engine running and there was no one else present in the vehicle. Pierce v. State, 738 S.E.2d 307 (Ga. Ct. App. 2013).
  • Idaho: “Actual physical control” as “being in the driver’s position of the motor vehicle with the motor running or with the motor vehicle moving.” Idaho Code § 18-8002(7) (1987 & 1991 Cum.Supp.); Matter of Clayton, 113 Idaho 817, 748 P.2d 401, 403 (1988). Even the presence of such a statutory definition has failed to settle the matter, however. While the Idaho statute is quite clear that the vehicle’s engine must be running to establish “actual physical control,” that state’s courts have nonetheless found it necessary to address the meaning of “being in the driver’s position.” See, e.g., State v. Woolf, 120 Idaho 21, 813 P.2d 360, 362 (Ct.App.1991) (court upheld magistrate’s determination that defendant was in driver’s position when lower half of defendant’s body was on the driver’s side of the front seat, his upper half resting across the passenger side).
    Wyoming: A defendant who was found unconscious in his vehicle parked some twenty feet off the highway with the engine off, the lights off, and the key in the ignition but off, was in “actual physical control” of the vehicle. Adams v. State, 697 P.2d 622, 625 (Wyo.1985). The court said,“An intoxicated person seated behind the steering wheel of an automobile is a threat to the safety and welfare of the public. The danger is less than that involved when the vehicle is actually moving; however, the danger does exist and the degree of danger is only slightly less than when the vehicle is moving. As long as a person is physically or bodily able to assert dominion in the sense of movement by starting the car and driving away, then he has substantially as much control over the vehicle as he would if he were actually driving it.”
  • Illinois: In People v. Cummings, 176 Ill.App.3d 293, 125 Ill.Dec. 514, 517, 530 N.E.2d 672, 675 (1988), the Illinois Court of Appeals also rejected a reading of “actual physical control” which would have prohibited intoxicated persons from entering their vehicles to “sleep it off.” The court said, “We can expect that most people realize, as they leave a tavern or party intoxicated, that they face serious sanctions if they drive. While the preferred response would be for such people either to find alternate means of getting home or to remain at the tavern or party without getting behind the wheel until sober, this is not always done. And while we can say that such people should have stayed sober or planned better, that does not realistically resolve this all-too-frequent predicament. For the intoxicated person caught between using his vehicle for shelter until he is sober or using it to drive home … encourages him to attempt to quickly drive home, rather than to sleep it off in the car, where he will be a beacon to police. We believe it would be preferable, and in line with legislative intent and social policy, to read more flexibility… In those rare instances where the facts show that a defendant was furthering the goal of safer highways by voluntarily ‘sleeping it off’ in his vehicle, and that he had no intent of moving the vehicle, trial courts should be allowed to find that the defendant was not ‘in actual physical control’ of the vehicle….” Id., 176 Ill.App.3d 293, 125 Ill.Dec. at 517, 530 N.E.2d at 675.
  • Maryland: In 1993, the Maryland appellate court took a close look at the issue of operation, and wrote a very detailed analysis of not only Maryland law but discussed how other states have dealt with the issue. The facts of the case consisted of a deputy approaching a vehicle and observing the occupant to be slumped over in the driver’s seat with the keys in the ignition and engine off.  The Court ultimately ruled that reasonable doubt existed as to whether the defendant had “actual physical control” of automobile. Atkinson v. State, 331 Md. 199 (1993).
  • Massachusetts: The appellate courts have discussed what constitutes “driving” or “operation.” A 2011 case analyzed a fact pattern with a sleeping driver slumped over the wheel, with the engine not running, but with power running to the engine. The Court held that the act of turning the ignition key is sufficient to permit a trial jury to conclude that a defendant “operated” a motor vehicle. Commonwealth v. McGillivary, 78 Mass. App. Ct. 644 (2011). The Court cited a much older case from 1928 which held that, “A person operates a motor vehicle … when … he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of that vehicle. The words of the statute ‘Whoever upon any way operates a motor vehicle’ include the setting in motion of the operative machinery of the vehicle as well as the driving of the vehicle under the power of the motor machinery.” Commonwealth v. Uski, 263 Mass. 22 , 24 (1928), emphasis added. This of course would be problematic in the case of any modern vehicle because the definition is very broad, and the act of even summoning or programming a destination into a self-driving or driverless vehicle could be considered sequencing or setting “in motion the motive power of that vehicle.”
  • New York: The New York criminal jury instruction reads, “A person also operates a motor vehicle when such
    person is sitting behind the wheel of a motor vehicle for the purpose of placing the vehicle in motion, and when the motor vehicle is moving, or even if it is not moving, the engine is running.”
  • Ohio: “actual physical control” has been defined as requiring that “a person be in the driver’s seat of a vehicle, behind the steering wheel, in possession of the ignition key, and in such condition that he is physically capable of starting the engine and causing the vehicle to move.” City of Cincinnati v. Kelley, 47 Ohio St.2d 94, 351 N.E.2d 85, 87-88 (1976) (footnote omitted), cert. denied, 429 U.S. 1104, 97 S.Ct. 1131, 51 L.Ed.2d 554 (1977).
  • Utah: In State v. Bugger, 25 Utah 2d 404, 483 P.2d 442 (1971), the defendant was discovered asleep in his automobile which was parked on the shoulder of the road, completely off the travel portion of the highway. The engine was off, although there was no indication as to whether the keys were in the ignition or not. The court defined “actual physical control” as “ ‘existing’ or ‘present bodily restraint, directing influence, domination or regulation,’ ” and held that “the defendant at the time of his arrest was not controlling the vehicle, nor was he exercising any dominion over it.” Id., 25 Utah 2d 404, 483 P.2d at 443 (citations omitted and emphasis in original). The same court later explained that “actual physical control” was “intending to prevent intoxicated drivers from entering their vehicles except as passengers or passive occupants as in Bugger….” Garcia v. Schwendiman, 645 P.2d 651, 654 (Utah 1982) (emphasis added). In Garcia, the court held that the defendant was in “actual physical control” and not a “passive occupant” when he was apprehended while in the process of turning the key to start the vehicle.

DUI Tesla Autopilot

The Current State of Self-Driving or Driverless Cars

Google’s self-driving car project has the longest history of driverless development. Their project is now called “Waymo” and stands for a new way forward in mobility. Google has used Lexus SUVs and also their own proprietary jelly-bean-shaped car for testing. However, you cannot yet buy a Google self-driving car yet, rent one, or ride in one unless you are a engineer for Google.

As of the beginning of 2017, Tesla is clearly in the lead of self-driving technology with their Autopilot system. While some car makers have introduced adaptive cruise control and Jaguar/Land Rover has introduced electronic driver aids, there are no other manufacturer selling cars that are completely self-driving. Tesla advises drivers to remain in the driver’s seat and keep both hands on the wheel while the Autopilot system is engaged, but it’s clear from their marketing and the use of the system by real-world drivers that many people are considering it to be the world’s first self-driving system available to actual consumers.

DUI in a Self-Driving Car

Uber Self-Driving Ford Fusion. Photo used under Fair Use Doctrine.

Can You Get a DUI in a Self-Driving Driverless Uber?

In September of 2016, Uber unveiled a fleet of driverless Ford Fusions in Pittsburgh, PA. Uber plans to put its technology on Volvo XC90 SUVs in the future. Other than purchasing and using a Tesla with Autopilot, riding in an self-driving cab or taxi service would likely be the only way an average person would be able to ride drunk in a driverless vehicle. However, the car is not truly “driverless” because there’s a trained driver in the driver’s seat monitoring operations, and therefore would pilot the vehicle if needed. An intoxicated or impaired passenger would have no interaction with the driving or operation of a vehicle, so a DUI would be highly unlikely.

DUI Self-Driving Car

Conclusion

As with many legal questions, the answer to the question, “Can you get a DUI in a self-driving car?” is a very firm: “It depends.”

With the current state of technology, an intoxicated or impaired occupant of a vehicle sitting in or near the driver’s seat would very likely be charged with DUI anywhere in the country, once the vehicle was either set in motion or activated to begin motion. The reason for this is that all of the following would likely be considered “driving” or “operating” the vehicle:

  • Turning the keys in the ignition in order to start the engine
  • Pushing a dashboard button in a keyless vehicle in order to start the engine
  • Pushing a button on an electronic fob to start the engine
  • Summoning a car using Tesla’s summon feature or the summon feature used by Jaguar/Range Rover
  • Manually programing navigation into a car GPS or navigation system– by keyboard or touchscreen– while the car is running or in operation
  • Using voice commands to programing navigation into a car GPS or navigation system while the car is running or in operation
  • Sitting in the passenger seat with the engine running or– the case of an electric vehicle– with electric power ready to be applied to the motor
  • Sitting in the passenger seat in a moving car ready to intervene by grabbing the wheel if needed, braking if needed, or otherwise assisting the car

To the author’s knowledge, no one in the United States has yet been charged with DUI while using a truly autonomous driving mode in a self-driving or driverless car. However, that’s likely due to the very small number of self-driving currently cars on the road. In theory, the only way to avoid a DUI in driverless a car would be to:

  • 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.

Oregon Lawyer and Attorney Michael RomanoAuthor Michael Romano is a DUI & criminal defense attorney based out of Portland, Oregon. He has over 16 years of experience in the criminal justice system as a former government law clerk, misdemeanor and felony prosecutor, and private defense attorney. Mr. Romano is certified in the administration and instruction of Standardized Field Sobriety Tests (SFSTs), has trained on the Intoxilyzer 8000 breathalyzer, and has handled over 200 jury trials as lead counsel.