By Matthew Wansley*


Human drivers are a menace to public health. In 2019, 36,096 Americans were killed in motor vehicle crashes, and an estimated 2.74 million Americans were injured. Most crashes aren’t “accidents.” The National Highway Traffic Safety Administration estimates that driver error is the critical reason for 94% of crashes. The deployment of autonomous vehicles (AVs)—likely in the form of robotaxis—will make transportation safer. AVs will cause fewer crashes than conventional vehicles (CVs) because software won’t make the kinds of errors that drivers make. AVs won’t drive drunk, get drowsy, or be distracted. They won’t speed, run red lights, or follow other vehicles too closely. They will drive cautiously and patiently. AVs will consistently drive like the safest human drivers drive at their best.

But AVs could be even safer, I argue in a forthcoming article, The End of Accidents (forthcoming in the U.C. Davis Law Review). AVs could be designed not only to avoid causing their own errors, but also to reduce the consequences of errors by human drivers, cyclists, and pedestrians. AVs can monitor their surroundings better and react more quickly than human drivers. AV technology has the potential to make better predictions and better decisions than humans can. AVs could be designed to anticipate when other road users will drive, bike, or walk unsafely and to prevent those errors from leading to crashes or make unavoidable crashes less severe. As long as AVs share the roads with humans, improving AV technology’s capability to mitigate the consequences of human error will save lives.

Liability rules will influence how much AV companies invest in developing safer technology. Existing products liability law creates insufficient incentives for safety because AV companies can reduce their liability for a crash by showing that the plaintiff was comparatively negligent. A comparative negligence defense will be a powerful liability shield because the kinds of errors that human drivers make—violating traffic laws and driving impaired—are the kinds of errors that human jurors recognize as negligence. A liability regime with a comparative negligence defense only creates incentives for AV companies to develop behaviors that AV technology has already mastered: driving at the speed limit, observing traffic signals, and maintaining a safe following distance. It won’t push AV companies to develop software that can reliably anticipate human error and take evasive action.

Data from real-world AV testing shows that AVs are rarely causing crashes but are failing to avoid plausibly preventable crashes. In October 2020, the leading AV company, Waymo, released a report of every contact between its prototype robotaxis and other vehicles, bicycles, or pedestrians during its 6.1 million miles of autonomous driving in 2019. At the current stage of testing, Waymo’s AVs usually have a backup driver behind the wheel, ready to take over manual control if necessary. Waymo’s report includes every actual contact during autonomous operation and every contact that would have happened, according to Waymo’s simulation software, if the backup driver hadn’t taken over manual control. If the report is reliable, almost every contact in the 6.1 million miles involved human error. In fact, in most cases, it’s not even arguable that the AV made an error that contributed to the contact.

Waymo’s report also reveals, however, that its AVs sometimes fail to avoid plausibly preventable crashes caused by human error. Consider the scenario depicted below. Late one night in 2019, a Waymo AV was travelling in the left lane of a divided road in the suburbs of Phoenix. A CV was traveling in the wrong direction in the right lane veering towards the AV. The backup driver took over manual control. According to Waymo’s simulation, if the backup driver hadn’t taken over, the CV would have crashed head-on into the AV. The force of the collision would have caused the AV’s airbag to deploy. The AV would have braked, but not swerved out of the way. The CV’s driver likely wouldn’t have swerved out of the way either because the driver was likely “significantly impaired or fatigued.”

Head-On Collision from Waymo Report

Waymo doesn’t clarify whether its backup driver was able to avoid a crash. But it’s quite possible that the backup driver was able to avoid it. Evolution has armed humans with a powerful survival instinct. The backup driver should have had room for evasive maneuvers on the wide suburban road late at night. Yet Waymo’s AV software—software that would drive 6.1 million miles without causing a crash that same year—wouldn’t have prevented an apparently preventable head-on collision.

Consider the simulated crash from a liability perspective. Suppose there had been no backup driver, and the vehicles collided. Assume, consistent with the report, that the driver of the CV was drunk. Would the drunk driver prevail against Waymo in a lawsuit? Almost certainly not. The question itself sounds absurd. Drunk driving that results in a crash is negligence per se. Waymo’s comparative negligence defense would dispose of the case. Because Waymo would avoid liability for the crash, it would have little incentive to develop technology that could prevent a similar crash in the future.

Now consider the same simulated crash from a social welfare perspective. Would the social benefits of technology that could prevent a crash like this exceed the cost of development? Likely yes. Drunk driving is common. Drivers, impaired or not, sometimes drive in the wrong direction. AV technology’s ability to monitor the environment more consistently and react more quickly gives AVs advantages over CVs in responding to impaired drivers. If AV companies invest in developing better behavior prediction and decision-making capabilities, they could design AVs that would dramatically reduce the social costs of drunk driving. AVs could become superhuman defensive drivers, preventing not only crashes like this one but also crashes that now seem unpreventable.

Investments in developing safer AV software will be highly cost-effective because the software will be deployed at scale. When an AV company develops code that enables its AVs to prevent a crash in a certain kind of traffic scenario—and doesn’t make them less safe in other scenarios—it will add the new code to the software that runs on all the AVs in its fleet. The improved code will prevent a crash every time one of the company’s AVs encounters a similar traffic scenario for the rest of history. As engineers change jobs or share ideas, the fix will spill over to other AV companies’ fleets. From a social welfare perspective, the return on investments in developing safer AV technology will be tremendous.

AV companies will only develop AV technology’s full crash prevention potential if they internalize the costs of all preventable crashes. But determining which crashes could be efficiently prevented with yet-to-be developed AV technology would be exceedingly difficult for jurors, judges or regulators. AV technology may achieve safety gains not just by mimicking the behavior of an expert human driver but by exhibiting emergent behavior—behavior that would seem alien to a human observer. The better approach is to treat all crashes involving AVs as potentially preventable. In The End of Accidents, I defend a system of absolute liability for AV companies that I call “contact responsibility.” Under contact responsibility, AV companies would pay for the costs of all crashes in which their AVs come into contact with other vehicles, persons, or property unless they could show that the party seeking payment intentionally caused the crash. No crash involving an AV would be considered an accident.[1]

Contact responsibility would align the private financial incentives of AV companies more closely with public safety. AV companies will collect massive amounts of data on driver, cyclist, and pedestrian behavior as their fleets of AVs passively record their surroundings. Contact responsibility will push AV companies to sift through that data to find opportunities to prevent crashes efficiently. In many cases, the solution will be developing safer technology. If a company’s AVs are frequently being hit in intersections by CVs that run red lights, the company might develop software that can more reliably predict when CVs won’t stop at traffic signals. In other cases, the solution may be deploying AVs differently. The company might plan routes for its robotaxis that avoid especially dangerous roads at certain times of day. In still other cases, the solution may be political. The company might use its money to lobby for protected bike lanes, mandatory ignition interlocks, or the development of a vehicle-to-vehicle communication network.

Contact responsibility might sound radical because it would insulate human drivers from tort liability for crashes they cause negligently or even recklessly. One might worry that this would create a moral hazard risk. But liability plays at most a modest role in deterring unsafe driving. Human drivers tend to cause crashes by breaking traffic laws and driving impaired. Under contact responsibility, the civil and criminal penalties for those violations would continue to provide deterrence. Drivers would also still face liability for crashes with other CVs, cyclists, and pedestrians. They would still face the possibility that their insurers would raise their premiums after a crash with an AV, even though they weren’t held liable, because the crash indicated they had a higher risk of crashing with a CV. Most importantly, drivers would still want to avoid the risk of injuring themselves or others. Contact responsibility wouldn’t diminish those deterrents. It would simply target liability incentives where they will be most useful: AV companies’ investment decisions.

In recent years, several scholars have proposed reforms to adapt tort law to crashes involving AVs.[2] The debate has yielded valuable insights, but it has been conducted almost entirely from the armchair. Now that data on AV safety performance is publicly available, it’s possible to make more informed predictions about the real-world consequences of different liability rules. The data suggest that AV crashes will follow a predictable pattern. AVs will rarely cause crashes. But they will fail to avoid plausibly preventable crashes caused by other road users. Therefore, it’s critical for liability reform to address whether AV companies will be responsible when a negligent or reckless human driver causes a crash with an AV. Scholars who have considered the issue of comparative negligence have advocated retaining some form of the defense.[3] In fact, the leading reform proposal expressly rejects AV company responsibility for “injury caused by the egregious negligence of a CV driver, coupled with minimal causal involvement by the [AV].”[4] I argue that absolving AV companies from responsibility for those injuries would be a mistake. Contact responsibility is the only liability regime that will unlock AV technology’s full crash prevention potential.


[1] For crashes between AVs, I endorse Steven Shavell’s “strict liability to the state” proposal. See Steven Shavell, On the Redesign of Accident Liability for the World of Autonomous Vehicles 2 (Harvard Law Sch. John M. Olin Ctr., Discussion Paper No. 1014, 2019), http://www.law.harvard.edu/programs/olin_center/papers/pdf/Shavell_1014.pdf.

[2] See generally Kenneth S. Abraham & Robert L. Rabin, Automated Vehicles and Manufacturer Responsibility for Accidents: A New Legal Regime for a New Era, 105 Va. L. Rev. 127 (2019); Mark A. Geistfeld, A Roadmap for Autonomous Vehicles: State Tort Liability, Automobile Insurance, and Federal Safety Regulation, 105 Calif. L. Rev. 1611 (2017); Kyle D. Logue, The Deterrence Case for Comprehensive Automaker Enterprise Liability, 2019 J. L. & Mobility 1; Bryant Walker Smith, Automated Driving and Product Liability, 2017 Mich. St. L. Rev. 1;David C. Vladeck, Machines Without Principals: Liability Rules and Artificial Intelligence, 89 Wash. L. Rev. 117 (2014).

[3] See, e.g., Mark A. Lemley & Bryan Casey, Remedies for Robots, 86 U. Chi. L. Rev. 1311, 1383 (2019).

[4] Abraham & Rabin, supra note 2, at 167.


* Matthew Wansley researches venture capital law and risk regulation as an Assistant Professor of Law at the Benjamin N. Cardozo School of Law. Prior to joining the Cardozo faculty, he was the General Counsel of nuTonomy Inc., an autonomous vehicle startup, and a Climenko Fellow and Lecturer on Law at Harvard Law School. He clerked for the Hon. Scott Matheson on the U.S. Court of Appeals for the Tenth Circuit and the Hon. Edgardo Ramos on the U.S. District Court for the Southern District of New York.

By Vanessa Casado Pérez*


When we think of transportation, we hardly ever think of sidewalks, albeit they are transportation corridors as much as roads or highways. Managing sidewalk space is not easy. There are multiple uses competing for this public space, as it is even called “our last commons.” The rights over sidewalks are murky, and their governance is often fragmented and suffering from lack of planning. The public has a right of way over them and walks on them. Hospitality and retail do business on them by installing terraces, announcing their latest sales on a blackboard, or by alluring passersby with wonderful window displays. Homeless people sleep on them.

COVID-19 has exacerbated the conflict between uses. On the one hand, our sidewalks are too narrow to social distance while walking on them even in the absence of street furniture or businesses. On the other, restaurants and bars have taken over the sidewalk as a lifeblood of their business. The latter makes the competition between users even more acute as pedestrians see their space reduced, something particularly challenging for those with disabilities. Where possible, local authorities have transformed parking spots as space for terraces, taking parklets to a whole new level, to expand sidewalks. Making parking more difficult may increase congestion due to people circling around trying to find a spot in the short term, but it may discourage driving in the long term. Expanding the sidewalk by reducing space for cars is an interesting move as normally what we see is shifting road problems to the sidewalk without carefully considering the impacts on the latter.  

Two such cases of shifting road congestion to the sidewalk are micromoblity devices and delivery robots. Both solve the last mile problem. Our roads are often congested. Some commuters waste more than a hundred hours a year in traffic. Vehicles emit greenhouse gases and local pollutants, which contribute to climate change and harm our health. There is no single recipe to mitigate our dependency on cars and reduce emissions. But often, an ingredient is public transportation. Public transportation can be inconvenient if it does not take you door to door as your private vehicle will. Finding an emissions-free way to fill the last mile gap between the public transit stop and your place of work or home is paramount. A successful way to do so are shared bikes or scooters systems. Beyond bikes docked on parking spots, there have been scooters or bikes scattered on the sidewalk in cities across the United States. These micromobility devices have taken a hit during the pandemic as there were fewer commuters and shared transportation was perceived as a contagion risk. However, the consulting firm McKinsey predicts that scooter and shared bike companies may recover as those micromobility devices are less risky than public transportation, can adapt to social distancing and hygiene requirements in the medium term, and in the long run cities are likely to discourage the use of private vehicles.[1]

Another new user of our sidewalks are delivery robots. Our demand for home delivery of goods has skyrocketed in recent years too, but, in contrast to micromobility devices, it has accelerated during recent lockdowns. The problem for delivery companies is the last mile, which is particularly costly. The last mile is also socially costly as vehicles parking and stopping add to congestion and pollution. While there have been advances in self-driving delivery vehicles, recently delivery robots have been deployed in university campuses or some neighborhoods to solve this last mile problem. A van arrives to a neighborhood, and the Serves (Postmates), Scouts (Amazon), or Relays (Savioke) decamp to deliver our food or our latest online impulse purchase. There are concerns related to privacy and job loss but also related to the use of sidewalks. Sidewalks are shared spaces. People with disabilities have had problematic encounters with those robots. Others have played pranks on them. But they, jointly with scooters, are a new private use of a shared resource: sidewalks. Reducing pollution is a step forward, but moving congestion from the road to the sidewalk benefiting both private companies and drivers is just another example of the disregard for pedestrians.[2]

Our sidewalks are home to pedestrians window-shopping, neighbors walking their dogs, blackboards with the latest addition to a restaurant’s menu, homeless individuals, terraces, and a long etcetera. Scooters are an additional obstacle to fluid mobility. While scooters are not allowed to be ridden on the sidewalk, they are left on it, often scattered, making it hard for those using the public right of way to walk on the, often narrow, sidewalk. Delivery robots, on the other hand, are circulating, and perhaps we can consider them as using the public right of way. But still, they also help illustrate that the space in our last commons, sidewalks, is scarce, both physically -because they are narrow- and as a result of regulation -because ordinances allow for multiple private uses of it. COVID-19 lockdowns have made it even scarcer as people made their sidewalks their gyms or social outlets and restaurants have transformed them into dining rooms. But even before cities have regulated what uses are acceptable on a sidewalk—for example, some cities ban food vendors—, or have discouraged certain uses—such as sleeping on benches by designing benches with individual seats that impede lying down.

Like with other gig economy innovations, scooters or robots have asked forgiveness instead of permission, but cities have moved to regulate them. For scooters, some cities did sign agreements that were quite lucrative. For delivery robots, state and local authorities are wrestling for the authority to regulate them. Some cities want to ban them, while state authorities seem more accommodating. Often, monetary compensation for the city is the solution. Fees do not solve the problem that space occupied by scooters or delivery robots is not occupied by the public; that while we accept these devices, we do not allow homeless people to station themselves on the street even if they have nowhere to go. Allowing scooters and delivery robots on our sidewalks is the nth illustration monetization and privatization of the sidewalk, a public space. In the cases of micromobility and delivery devices, privatization also benefits the public at large by reducing emissions because these devices reduce the need for automobiles. The conflict between uses remains though. While here is no straightforward solution to the incompatibility of uses, widening our sidewalks would mitigate scarcity and mitigate the conflicts. Widening the sidewalk may imply reclaiming space now granted to cars, further discouraging the use of private vehicles and, thus, further reducing emissions. Widening sidewalks may ensure that the public’s right of way has a clear path without so many obstacles, but it will not make all uses and users welcome. The decision of whether a city accepts homeless people or delivery robots, which will also reduce the number of delivery jobs, is a political one.


[1] Cities have more incentives than ever to want to reduce air pollution. Beyond the problems caused by smog, higher levels of air pollution have bene linked to worse coronavirus outcomes.

Maria A. Zoran, Roxana S. Savastru, Dan M. Savastru, & Marina N. Tautan, Assessing the Relationship Between Surface Levels of PM2.5 and PM10 Particulate Matter Impact on COVID-19 in Milan,  Italy, 738 Sci. Total Env’t 139825 (2020); Leonardo Setti, Fabrizio Passarini, Gianluigi De Gennaro, , Pierluigi Barbieri, , Maria Grazia Perrone, Andrea Piazzalunga, Massimo Borelli, Jolanda Palmisani, Alessia Di Gilio, Prisco Piscitelli, & Alessandro Miani, The Potential Role of Particulate Matter in the Spreading of COVID-19 in Northern Italy: First Evidence-Based Research Hypotheses, Health Scis. Preprint (Apr. 17, 2020),https://www.medrxiv.org/content/10.1101/2020.04.11.20061713v1.full.pdf.

[2] Vanessa Casado Perez, Reclaiming the Sidewalk, Iowa L. Rev. (forthcoming 2021) (on file with author), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3747436.

For an account of how our laws have benefitted cars, see Gregory H. Shill, Should Law Subsidize Driving?, 95 N.Y.U. L. Rev. 498, 551 (2020), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3345366.


* Vanessa Casado Pérez is an Associate Professor at Texas A&M School of Law and a Research Associate Professor at Texas A&M Department of Agricultural  Economics. Her scholarship focuses on public property and natural resources law. She is affiliated with the Bill Lane Center for the American West at Stanford University.

In several publications, she explores the role of property rights in the management of scarce natural resources and urban public property spaces. She has published in, among others, Southern California Law Review, Iowa Law Review, Florida State Law Review,  the NYU Environmental Law Journal, or the California Journal of Public Policy. 

Prior to joining Texas A&M, Professor Casado Perez was Teaching Fellow of the LL.M. Program in Environmental Law & Policy and Lecturer in Law at Stanford Law School. She holds an LLB, a BA in Economics, and an LLM from Universitat Pompeu Fabra in Barcelona, where she is from. She also holds an LLM from the University of Chicago Law School and a JSD from NYU School of Law.

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.

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