By Emily Kortright & Lucy Johnston-Walsh*


Children and young adults who are involved with the foster care system face multiple barriers to transportation, particularly in remote areas of the country with limited public transport options.  Recent changes in federal and state laws now allow children to remain in foster care beyond age 18 up to age 21, with a goal of providing these young adults with the opportunity to develop independent living skills.  As a greater number of older youth may choose to remain involved with foster care, there will be increasing demands for transportation to places of work and education.  Youth residing in suburban or rural areas have unique challenges due to lack of public transportation. Unfortunately, foster youth frequently experience many legal challenges in obtaining their drivers’ licenses, purchasing a car and obtaining insurance.  Foster care provider organizations (both governmental and private) often express fears of liability related to allowing a foster youth to drive.  

New and emerging forms of transportation may provide potential solutions, but – as always – with advancements in technology come challenges in implementation. Just as mass transit is unavailable, micromobility is largely inaccessible for foster youth in remote locations. Bikes, scooters, and other means of bike-lane-occupying transit have provided cost-effective, footprint reducing options for residents of cities around the world. However, micromobility options are often impractical to implement in suburban and rural locations where most trips are more than a few miles. Micromobility for foster children in urban areas presents its own slew of concerns such as risk of accidents and injuries, lack of supervision, and determination of appropriate age of usage.

Ridesharing apps have become some of the most pervasive and visible technological advancements in mobility; however, combined with the lack of available cars in non-urban areas, they do not provide the advantages to foster children that they do to the general population. Many foster children do not even have access to smart phones and cellular data. Also, Uber and Lyft drivers cannot be properly vetted to ensure the safety of the children, and often have restrictions related to unaccompanied minors. State laws and policies place appropriate safety restrictions on who may transport foster youth, and often the list includes only caseworkers, biological parents and/or foster parents, or residential facility staff. Unless special permission is given by the court or parents, it would be challenging to approve any rideshare driver.  Moreover, waiting for a rideshare driver to become available and arrive could be problematic for youth who have time commitments relating to jobs or appointments.

Companies such as HopSkipDrive, Kango, VanGo and Zum seek to provide ridesharing services to children in a safe manner, vetting drivers through extensive interviews, background checks, and certification processes, and implementing real-time monitoring systems. Los Angeles-based HopSkipDrive, has even focused its outreach on foster youth, expanding to Las Vegas and partnering with Clark County Child Welfare Services. However, these services are not widespread, often require scheduling in advance, and the extensive vetting process for drivers means that the cost of each ride tends to be even higher than most ridesharing apps. Even extensive security measures cannot completely shield children from the risks of assault and kidnapping that ridesharing apps present. In February of 2020, HopSkipDrive was suspended in Las Vegas when a driver was charged with unlawful contact with a minor and luring a child, despite having an approved criminal record and background check.

According to a new report, 1 in 10 vehicles will be fully automated by 2030, with robo-taxis comprising a significant portion of the market. While contracts with agencies that provide robo-taxi services could provide a convenient solution for foster youth, the possibility of fully automated vehicles means that even semi-autonomous cars will still require some manner of control by a human driver. This presents similar challenges as ridesharing. Furthermore, the newness of the technology will likely mean higher costs, accessibility that is limited to cities and wealthier areas, higher risks, and lower public trust – all crucial factors that the foster care system considers when dealing with the transportation of youth.

Even if the aforementioned options were easily accessible to foster youth, all of them could prove to be cost-prohibitive. Child welfare agencies operate on strict budgets, allocating money only for necessities. Foster parents are also likely on tight budgets and may have a hard time justifying the expense of transportation technology. Even if a child has access to a smart phone to order an Uber, he or she most likely does not have the money to spare. Children in urban areas may have access to micromobility, but if they do not have the money to pay for it, it is of little use. Children in suburban or rural areas may find the cost prohibits them from even owning a bike or scooter. If such technology is deemed necessary, various bureaucratic hoops remain when deciding who will pay for such expenses.

Despite these safety and budgetary considerations, technology should still be harnessed to address many of the transportation barriers that foster youth face. Technology must be adapted to better suit the unique situations of the foster youth population.  For instance, individuals with connections to child protection services (i.e. caseworkers, foster parents, Court Appointed Special Advocates, etc.) could volunteer to act as on-call drivers, providing rides to youth in the foster care system. Safety concerns could be limited by keeping drivers within the pool of individuals who have already been approved. For older youth and those in less rural areas, micromobility programs could be created specifically for foster children, in which scooters and bikes could be donated or purchased specifically for their usage. Additionally, as a far-out solution, contracts between counties and fully automated vehicles could prove to be the ultimate solution once the technology has become more pervasive and affordable. It must not be taken for granted that technology automatically benefits all populations and individuals equally; the unique challenges of foster youth mean that we must provide them with unique solutions.

Sources:


* Lucy Johnston-Walsh is a Clinical Professor and Director of the Children’s Advocacy Clinic at Penn State Dickinson Law in Carlisle, Pennsylvania. Emily Kortright is a certified legal intern in the Children’s Advocacy Clinic and JD candidate. The Children’s Advocacy Clinic is an experiential learning program for law students. The Clinic receives court appointments to represent children who are involved with the foster care system. Many clinic clients have been negatively impacted by transportation barrriers.

Guest Blog by Jesse Halfon

Last month, two California Highway Patrol (CHP) officers made news following an arrest for drunk driving. What made the arrest unusual was that the officers initially observed the driver asleep behind the wheel while the car, a Tesla Model S, drove 70 mph on Autopilot, the vehicle’s semi-automated driving system.

Much of the media coverage about the incident revolved around the CHP maneuver to safely bring the vehicle to a stop. The officers were able to manipulate Tesla Autopilot to slow down and ultimately stop mid-highway using two patrol vehicles, one in front and one behind the ‘driverless’ car.

But USC Law Professor Orin Kerr mused online about a constitutional quandary relating to the stop, asking, “At what point is a driver asleep in an electric car that is on autopilot “seized” by the police slowing down and stopping the car by getting in front of it?” This question centered around when a person asleep was seized,a reasonable 4th Amendment inquiry given the U.S. Supreme Court standard that a seizure occurs when a reasonable person would not have felt ‘free to leave’ or otherwise terminate the encounter with law enforcement.[1] 

Kerr’s issue was largely hypothetical given that the police in this situation unquestionably had the legal right to stop the vehicle (and thereby seize the driver) based on public safety concerns alone.

However, a larger 4th Amendment question regarding semi-automated vehicles looms. Namely, what constitutes’reasonable suspicion’ to stop the driver of a vehicle on Autopilot for a traditional traffic violation like ‘reckless driving’ or ‘careless driving’?[2] Though there are no current laws that prescribe the safe operation of a semi-autonomous vehicle, many common traffic offenses are implicated by the use of automated driving features.

Some ‘automated’ traffic violations will be unchanged from the perspective of law enforcement. For example, if a vehicle on Autopilot[3] fails to properly stay inits lane, the officer can assess the vehicle’s behavior objectively and ticket the driver who is ultimately responsible for safe operation of the automobile.Other specific traffic violations will also be clear-cut. New York, for example still requires by statute that a driver keep at least one hand on the wheel.[4] Many states ban texting while driving, which though often ambiguous, allows for more obvious visual cues for an officer to assess.

However, other traffic violations like reckless driving[5] will be more difficult to assess in the context of semi-automated driving.

YouTube is filled with videos of people playing cards, dancing, and doing various other non-driving activities in their Teslas while Autopilot is activated. While most of these videos are performative, real-world scenarios are commonplace. Indeed, for many consumers, the entire point of having a semi-autonomous driving system is to enable safe multi-tasking while behind the wheel.

Take for example, the Tesla driver who is seen biting into a cheeseburger with both hands on the sandwich (and no hands on the wheel). Is this sufficient for an officer to stop a driver for careless driving?Or what about a driver writing a note on a piece of paper in the center console while talking on the phone. If during this activity, the driver’s eyes are off the road for 3-4 seconds, is there reasonable suspicion of ‘reckless driving’that would justify a stop? 5-6 seconds? 10? 20?

In these types of cases, the driver may argue that they were safely monitoring their semi-automated vehicle within the appropriate technological parameters. If a vehicle is maintaining a safe speed and lane-keeping on a low traffic highway, drivers will protest – how can they be judged as ‘careless’ or ‘reckless’ for light multi-tasking or brief recreation while the car drives itself?

The 4th Amendment calculus will be especially complicated for officers given that they will be unable to determine from their vantage point whether a semi-autonomous system is even activated. Autopilot is an optional upgrade for Tesla vehicles and vehicles that are equipped with L2/L3 systems will often be driven inattentively without the ‘driverless’ feature enabled. Moreover, most vehicles driven today don’t even have advanced automated driving features.

A Tesla driver whose hands are off the steering wheel could be safely multi-tasking using Autopilot. But they could also be steering with their legs or not at all. This leaves the officer, tasked with monitoring safe driving for public protection, in a difficult situation. It also leaves drivers, who take advantage of semi-automated systems, vulnerable to traffic stops that are arguably unnecessary and burdensome.

Of course, a driver may succeed in convincing a patrol office not to issue a ticket by explaining their carefully considered use of the semi-automated vehicle. Or the driver could have a ‘careless driving’ ticket dismissed in court using the rational of safely using the technology. But once a police-citizen interaction is initiated, the stakes are high.

Designing a semi-automated vehicle that defines the parameters of safe driving is complex. Crafting constitutional jurisprudence that defines the parameters police behavior may be even more complex. Hopefully the Courts are up to the task of navigating this challenging legal terrain.

Jesse Halfon is an attorney in Dykema’s Automotive and Products Liability practice group and a member of its Mobility and Advanced Transportation Team.


[1] United States v. Mendenhall, 446 U.S. 544, 554 (1980); United States v. Drayton, 536 U.S. 194, 202 (2002);Florida v. Bostick, 501 U.S. 429, 435-36 (1991).

[2] Some traffic violations are misdemeanors or felonies. To make an arrest in public for a misdemeanor, an officer needs probable cause and the crime must have occurred in the officer’s presence.  For a Terry stop involving a traffic misdemeanor, only reasonable suspicion is required.

[3] Tesla Autopilot is one of several semi-automated systems currently on the market. Others,including Cadillac Super Cruise Mercedes-Benz Drive Pilot and Volvo’s Pilot Assist offer comparable capabilities.

[4] New York Vehicle and Traffic Law § 1226.

[5] Most states have a criminal offense for reckless driving. Michigan’s statute is representative and defines reckless driving as the operation of a vehicle “in willful or wanton disregard for the safety of persons or property”.  See Michigan Motor Vehicle Code § 257.626. Michigan also has a civil infraction for careless driving that is violated when a vehicle is operated in a ‘careless or negligent manner’. See Michigan Motor Vehicle Code § 257.626b