New technologies often present the legal systems with challenges and uncertainties and the rise of self-driving vehicles is no different. In the context of DWI cases, one of the most interesting issues will be when the driver of a fully autonomous vehicle is operating a vehicle for purposes of proving that a person committed the offense of driving while intoxicated.
According to experts on artificial intelligence, there are five levels of automobile autonomy beginning with 0 – which requires total driver control with no assistance – to 5, which is fully automated and requires no human intervention. Currently, there are no fully autonomous vehicles on the road. The most autonomous vehicles available still require a driver be awake and conscious and be ready to take over should an emergency arise. But as this technology gets better and better – and a human driver has to do less and less – how will the law treat the intoxicated driver, who is really more of a passenger? Will Texas law encourage drivers to use the self-driving features of their vehicles when they’ve had a bit too much to drink? Or will a driver of a vehicle on autopilot be charged with DWI regardless of how little the driver is actually controlling the vehicle (and how much safer the public is made by the self-driving car)?
“Driving” (or “operation” which is used synonymously) is a basic element of driving while intoxicated. But interestingly, these terms are not defined in Texas (perhaps because no one thought the term needed to be defined when the DWI statute was originally made law and there was likely very little gray area as to whether a person was “operating” a vehicle.). In 1995, the Texas Court of Criminal Appeals (the highest criminal court in Texas) held that a person is operating a vehicle when the “totality of the circumstances demonstrates that the defendant took action to affect the functioning of his vehicle in a manner that would enable the vehicle’s use.” The court also noted that although driving does involve operation, operation does not necessarily involve driving in the context of a DWI case.
The issue of whether a DWI defendant was “operating” a vehicle typically comes up in a DWI trial where a defendant is found asleep behind the wheel or engages in some action with a vehicle short of driving (like revving the engine or running the air conditioner). Since Texas courts have held that juries should not receive any definition of “operate” this issue is very fact-specific and it is up to a criminal defense attorney to convince a jury that a particular behavior should not be considered to meet the definition of operation. If, for example, a car is stationary and in park, it is not being “operated” for purposes of DWI (although there are Texas cases that have found no movement is needed for a jury to find “operation,” this is still a jury issue in a DWI trial).
An effective criminal defense attorney will begin the process of getting a jury on his or her side during jury selection in a DWI trial where operation is at issue, by asking them to talk about when a driver is actively “operating” a vehicle versus initiating some function of the vehicle. It is critical to get the jury thinking of questions like these in a DWI trial: Are you really “operating” a vehicle when you are sitting in the vehicle while the vehicle is in park, and the air conditioning is on? What is the difference between operating a motor and operating a motor vehicle? Does running a motor present the same type of dangers that driving while intoxicated does?
Even with the most advanced self-driving technology currently available, a “driver” would likely still be considered to be “operating” the vehicle for purposes of a DWI. But it is not difficult to imagine a day very soon where there will be fully autonomous vehicles that are safer than vehicles driven by human drivers, and that require little more than the push of a button to take a driver home (it’s also possible that such a vehicle will take a driver home without even the push of a button). As this technology becomes the norm, it is also easy to imagine that many juries would be reluctant to convict an intoxicated driver driven safely home by an autonomous vehicle.
When the technology evolves to this point, ideally the law would evolve with it. Rather than leave the definition of “operation” up to the jury (where results may vary based on a jury’s level of comfort with a novel technology, among other factors), it would be in the public interest to modify the DWI statute to except autonomous vehicles or provide a definition of “operate” that excludes a self-driving car. The day is soon approaching when human drivers – even sober human drivers – are the less safe alternative. According to some figures, approximately one-third of all deaths from traffic fatalities are due to DWIs, and at the end of the day, the goal should be public safety.
I am not yet aware of any DWIs being issued to drivers intoxicated in a Tesla driving in self-driving mode in the Houston area, but the day is surely coming. Until the law evolves with the technology, a criminal defense attorney needs to be familiar with the law on “operation” as it applies to any factual scenario where there is a question about whether a person was really driving.
Attorney Jose Ceja is a former prosecutor and has received extensive training in all facets of DWI law and science and is an excellent choice if you are charged with DWI anywhere in the Greater Houston area. Call Ceja Law Firm today to schedule a free consultation.