FIU Law Review

Volume 11 Number 1 Article 16

Fall 2015

Good but Not Great: Autonomous Vehicles and the Law in Florida

Jeffery Mackowski Florida International University College of Law

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Online ISSN: 2643-7759

Recommended Citation Jeffery Mackowski, Good but Not Great: Autonomous Vehicles and the Law in Florida, 11 FIU L. Rev. 221 (2015). DOI: https://dx.doi.org/10.25148/lawrev.11.1.16

This Comment is brought to you for free and open access by eCollections. It has been accepted for inclusion in FIU Law Review by an authorized editor of eCollections. For more information, please contact [email protected]. 37792-fiu_11-1 Sheet No. 114 Side A 04/28/2016 10:11:02 * . I owe special Jeffery MackowskiJeffery FIU Law Review Act effective July 1, 2012, ch. 2012-174, 2012 2012 2012-174, ch. 2012, 1, July effective Act 1 NTRODUCTION see also )4/15/167:36PM I. I ELETE D ART OT N P O (D DOCX . § 316.85(1) (2014); Vehicles and the Law in Florida Florida in Law the and Vehicles _4.15. TAT Good but Not Great: Autonomous Great: Not but Good .S INAL LA _F F See This scenario raises some interesting and important legal issues. Is AV A bright sun shines in the crisp blue sky, beating down on Florida J.D. Candidate, 2016, Florida International University College of Law. I am grateful for the ACKOWSKI 1 * M K roadways without any human passengers? How should law enforcement be allowed to stop an AV? Who has standing to challenge a search of an AV? If a hacker took control of the AV, is this virtual car-jacking governed by existing law? Should all AVs be equipped with a “black box” type data technology a good idea? Who (or what) is the Who legal is responsible if operator something goes of wrong? Can the an AV? AV break the law? What impact does AV offenses? technology What about have intoxicated driving? What on happens if Alice uses strict-liability the noncriminal Bob, Can AV law? the the to her break allow Should racing? AV illegal for who does not have a driver license himself? If he cannot, does it make sense to allow the AV to drive on public because he is blind, use the AV by destination, and causes Once the again, AV the to AV engage. safely travels on public roadways without incident. Under Florida’s current motor vehicle legal. perfectly laws,is scenario this during a rather pleasant summer married. Alice is a driver licensed afternoon. in the state of Bob Florida. is blind, and Alice and Bob are he does happily not have a license to vehicle (AV), drive. colloquially known as a self-driving Together, car. Alice and Bob want they own an autonomous to travel to a restaurant for dinner. Once indicates they their destination both and causes get the in AV to the engage (i.e., AV, Alice pushes Alice the start button). The AV transports obeying all traffic the laws, and utilizing public roadways. Alice’s sister, Carol, couple safely to the restaurant, wants to join the couple for Carol’s home and dinner. causes the AV Alice to engage. While sets empty and without the any AV’s human destination capable to of taking control, the Carol’s home. Once AV there, Carol, a licensed drives driver, gets in the on AV, sets the public roadways to 13 - M Fla. Laws 1, 99 (“The Legislature does finds not that prohibit the or state specifically regulate the testing roads.”).public on vehicles motor in technology autonomous of operation or invaluable feedback provided to me by Professor Eric Carpenter and the reality. a cars self-driving make to endeavor who those to thanks C Y 37792-fiu_11-1 Sheet No. 114 Side A 04/28/2016 10:11:02 A 04/28/2016 114 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 114 Side B 04/28/2016 10:11:02 M K C Y .265, . 1145, The The EV 4 EV .L.R Michigan, Michigan, .L.R [Vol. 11:221 11:221 [Vol. OUS LARA AVs are poised C 2 , 51 H 51 , The benefits of this this of benefits The ANTA 3 An AV is capable of of capable is AV An 5 , 52 S (Florida, Nevada, Criminal Liability Issues Created by Autonomous 239, 239 (2007). Y ’ OL ) 4/15/16 7:36 PM .&P ELETE Recurring Dilemmas: The Law’s Race to Keep Up with FIU Law Review Law FIU D ECH note 4, at 1158. OT N However, the AV laws in Florida are good in that that in good are Florida in laws AV the However, .1157,1158(2012). O 6 supra EV (D .J.L.T Legal Aspects of Autonomous Driving LL I L. R DOCX Driving Miss Daisy: An Autonomous Chauffeur System Chauffeur Autonomous An Daisy: Miss Driving , 2 U. 2 , LARA _4.15. C INAL _F Lyria Bennett Moses, Moses, Bennett Lyria ANTA Sven A. Beiker, See See Frank Douma & Sarah Aue Palodichuk, Palodichuk, Aue Sarah & Douma Frank Julie Goodrich, Douma & Palodichuk, , 52 S 52 , This Comment will show how Florida’s current AV laws combined The idea that “the law lags behind technology” is generally agreed ACKOWSKI 2 3 4 5 6 to become commonplace in the not-too-distant future. technology are in the areas of safety, efficiency, and mobility. technological feat is not effectively addressed by the traditional automobile criminal liability regime. controlling itself, with or without a person in the vehicle, and this Vehicles current legal regimes of states with AV laws and California) in order to show different approaches to resolving the legal issues that AVs present while maximizing their benefits. Part V identifies the unique legal issues regarding AVs, how Florida handles and how Florida these could alter issues, its AV legal regime to increase the benefits of main the summarizing conclusion short a is VI Part Finally, technology. AV Comment.the of points they augment the traditional legal regime unique of legal automobiles to challenges address posed the by technology. AV of limit benefits substantially the AVs, but are not great because they with the of application legal automobile are traditional principles sufficient to address the unique issues opportunities raised of Florida’s AV by legal paradigm AVs, to maximize and the benefits point AV of technology. out This the Comment missed is introduction. organized Part II in provides an six overview of AV parts. technology. Part Part III will examine the I benefits of AV technology. Part IV discusses and compares the is this Technological Change Technological 222 recorder? Should law enforcement have special tools to address the use of smuggling?drug crimes,as of such furtherance the in AVs upon by policy makers, academia, and legal practitioners. 13 - M traditional legal regime of automobiles driver’s seat of a vehicle assumesis in control of that vehicle. that the person in the 281-82 (2013). 281-82 1149-52 (2012). 1149-52 37792-fiu_11-1 Sheet No. 114 Side B 04/28/2016 10:11:02 B 04/28/2016 114 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 115 Side A 04/28/2016 10:11:02 , 8 11 . 265, . RBAN The The , IEEE David David This This EV (Oct. 11, 12 13 See Grand Grand AG 10 .L.R DARPA U OUS Almost $10 $10 Almost Defense Advanced , PC, M 16 223 (Oct. 9, 2010), https:// 2010), 9, (Oct. ECHNOLOGY , 51 H 51 , T LOG B Autonomous Vehicle Report , (June 16, 2009), www.import- 2009), 16, (June EHICLE AR FFICIAL C EHICLES O V (NPR radio broadcast Sept. 27, 2012, 2012, 27, Sept. broadcast radio (NPR Development of AVs was was AVs of Development V XPERIENCE FROM THE 9 E Development of AVs began in in began AVs of Development 7 OOGLE MPORT OTOR M , G , I ) 4/15/16 7:36 PM UTONOMOUS It is unclear whether Google intends to to intends Google whether unclear is It Active Safety Technology: Adaptive Cruise Control, Lane A Google to Make Driverless Cars an Alphabet Company in 14 AFETY AND Using Fuzzy Logic in Automated Vehicle Control NTRODUCTION TO S ELETE D note 13, at 10:16:06 AM. ., I .26, 27-28 (1988). 27-28 .26, Google Car: Not the First Self-Driving Vehicle Self-Driving First the Not Car: Google OT N EV Automobile manufacturers are also developing developing also are manufacturers Automobile O supra IGHWAY 15 , .R What We’re Driving at (D Larry Carley, H (Dec. 16, 2015, 12:16 PM), www.bloomberg.com/news/articles/2015-12- PM), 12:16 2015, 16, (Dec. ECH OF OF . DOCX VERVIEW OF VERVIEW , DARPA, www.darpa.mil/ (last visited Jan. 31, 2016). 31, Jan. visited (last www.darpa.mil/ DARPA, , Driving Miss Daisy: An Autonomous Chauffeur System Chauffeur Autonomous An Daisy: Miss Driving T ERGER ET AL ’ O B EP USINESS N _4.15. Autonomous Vehicles and the Law in Florida in Law the and Vehicles Autonomous ; see also B , 91(6) T 91(6) , .D Chloe Albanesius, .36, 40 (Jan.–Feb. 2007) (“Almost all car manufacturers now offer [ADAS].”). [ADAS].”). offer now manufacturers car all (“Almost 2007) (Jan.–Feb. 40 .36, INAL . LA YS _F John Lippert & Jack Clark, Clark, Jack & Lippert John II. A F Sebastian Thrun, Thrun, Sebastian S HRISTIAN 3, 4 (Christopher Rouff & Mike Hinchey eds., 2012). See The Diane Rehm Show: The Future of Driving See See id See See The Future of Driving of Future The DARPA stands for the Defense Advanced Research Projects Agency. Agency. Projects Research Advanced Defense the for stands DARPA C See, e.g., EUREKA! Nineteen European countries comprised the EUREKA program, which was a joint research research joint a was which program, EUREKA the comprised countries European Nineteen ART LOOMBERG The “Google Car” is the most advanced AV in the world. At the 1939 World’s Fair, General Motors predicted that by the 1960s, P ACKOWSKI 13 14 15 16 7 8 9 10 11 12 , B M K HALLENGE NTELLIGENT combination of computer hardware and software allows the AV to operate without any human interaction. car.com/active-safety-technology-adaptive-cruise-control-lane-departure-warning-collision-mitigation- Goodrich, Julie braking/; Research Projects Agency Projects Research further spurred by the United States through its DARPA 10:06 AM), 10:10:25 AM,10:10:25 AM), thedianerehmshow.org/shows/2012-09-27/future-driving/transcript. 10:06 2010, 3:55 PM), www.pcmag.com/article2/0://www.pcmag.com/article2/0,2817,2370598,00.asp. PM), 3:55 2010, 2016 and development program focused on getting innovative products to market. PROMETHEUS stands for the Program for European Traffic Dickson, and Highest Efficiency and Unprecedented Safety. 16/google-said-to-make-driverless-cars-an-alphabet-company-in-2016. A. The History of History AutonomousVehicles The A. automobiles. traditional AVs replace would This program worked to develop driving systems that utilized traffic-flow “electronic monitors to automatically increase detect any communication risk of among collision.” drivers and Google Car uses a sophisticated computer within the vehicle to process data from a variety of sensors, cameras, lasers, and GPS technology. I C 2015] 13 - M googleblog.blogspot.com/2010/10/what-were-driving-at.html. their own technology. BMW, General Nissan, Tesla, Motors, Toyota, and Honda, Volvo Mercedes-Benz, are all developing AVs. the 1980s with a European program called EUREKA PROMETHEUS. manufacture manufacture its own AV or sell or license existing their AV manufacturers. technology suite to 268-72 (2013); Jose E. Naranjo et al., #13-008, at 2 (2014) Challenges, which sought to create AVs capable of operating in warzones. in operating of capable AVs create to sought which Challenges, Departure Warning & Collision Mitigation Braking C Y 37792-fiu_11-1 Sheet No. 115 Side A 04/28/2016 10:11:02 A 04/28/2016 115 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 115 Side B 04/28/2016 10:11:02 M K C Y OLICY P 24 [Vol. 11:221 11:221 [Vol. (Sept. 25, 2012, 11:39 11:39 2012, 25, (Sept. TATEMENT OF S 17 ORBES . 1, 10 n.49 (2013), http:// , F At level 4, “full self- “full 4, level At ECH 22 a motor vehicle enabled with active active with enabled vehicle motor a RELIMINARY At level 0, “[n]o-automation,” “[n]o-automation,” 0, level At At level 3, “limited self-driving self-driving “limited 3, level At ., P 18 .J.L.&T 21 excludes At level 2, “combined function function “combined 2, level At ICH DMIN 20 A ) 4/15/16 7:36 PM , 20 R . . . unless any such system alone or in combination with AFETY S ELETE The discussion and analysis contained within within contained analysis and discussion The FIU Law Review Law FIU D 23 4 (2013). OT N O RAFFIC T (D Self-Driving Cars Will Take Over by 2040 EHICLES V When AVs Take Over the Road: Rethinking the Expansion of the Fourth . § 316.003(90) (2015) (Defining an AV as “[a]ny vehicle equipped with DOCX At level 1, “function-specific automation,” the driver is is driver the automation,” “function-specific 1, level At TAT 19 IGHWAY _4.15. H .S driver assistances systems L LA INAL ’ UTOMATED _F F Jim Motavalli, Motavalli, Jim (At this level of automation, “safe operation rests solely on the automated vehicle vehicle automated the on solely rests operation “safe automation, of level this (At A at 5 (An example of combined function automation is adaptive cruise control, which which control, cruise adaptive is automation function combined of example (An 5 at AT (An example of limited self-driving automation is a self-driving car that alerts the driver driver the alerts that car self-driving a is automation self-driving limited of example (An (Examples of function specific automation include traditional cruise control and collision collision and control cruise traditional include automation specific function of (Examples at 4. Id. See Id. Id. Id. See Id. N The National Highway Traffic Safety Administration (NHTSA) has ACKOWSKI 22 23 24 17 18 19 20 21 ONCERNING defined five levels of vehicle automation. automation,” the vehicle is capable of controlling both speed and steering such that the driver need only monitor the roadway and be available to take control “at all times and on short notice.” automation,” the vehicle assumes “safety-critical functions traffic or under environmental . . . conditions so certain that the driver is not expected to constantly monitor the roadway while driving.” autonomous technology. The term ‘autonomous technology’ means vehicle that has the capability to drive the vehicle technology on which the technology is installed without the active installed on a motor control or monitoring by a human operator. The term when it encounters a condition, such as properly.). function a construction zone, where the automation system will not driving automation and vehicles with lesser levels of automation.of levels lesser with automationvehicles driving and this Comment is focused on level 4 AVs, full self-driving automation. The Florida Legislature recognizes the difference between an AV with full self- warning systems.). warning maintains the vehicle’s speed relative to the other traffic driver’sa without vehicle input.). the steers on the roadway, and lane centering, which roadway, or a combination of both. still in control of the vehicle’s safe technology operation, that but assists the the vehicle driver has with some steering or speed, monitoring the driving automation,” the vehicle is in including complete monitoring control of the all roadways, functions, such operating while unoccupied. that the vehicle is capable of C 224 billion was spent on AV 2016. by billion $130 to increase to predicted amountis research and development in 2011, and this 13 - M AM), www.forbes.com/sites/eco-nomics/2012/09/25/self-driving-cars-will-take-over-by-2040/ (cited by Racheal Roseman, Note, Amendment in a Technology-Driven World jolt.richmond.edu/v20il/article3.pdf. system.”). the driver is completely in control of the vehicle’s speed, steering, and other functions required for safe operation on the roadway (such as for monitoring pedestrians). safety systems or other systems enables the vehicle on which the technology is installed to drive without the active control 37792-fiu_11-1 Sheet No. 115 Side B 04/28/2016 10:11:02 B 04/28/2016 115 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 116 Side A 04/28/2016 10:11:02 25 27 UIDE FOR The Coming . 1321, 1322 EV :AG L. R . (Aug. 28, 2014), : 225 EV LARA Limitations of the the of Limitations .R C 28 ECHNOLOGY ECH T T ANTA OBILITY ECHNOLOGY , 52 S , MIT EHICLE M V Google’s fully autonomous car car autonomous fully Google’s 30 26 AV T Gary Marchant & Rachel Lindor, Lindor, Rachel & Marchant Gary AND , see also UTONOMOUS ) 4/15/16 7:36 PM ., A ENEFITS OF ENEFITS ELETE The Florida legislature recognized efficiency efficiency recognized legislature Florida The FFICIENCY D B 31 OT ,E N HE O (D (Aug. 14, 2014), www.digitaltrends.com/cars/self-driving-cars-far-flung- 2014), 14, (Aug. note 3, at 1150–52; 1150–52; at 3, note AFETY III. T DOCX S NDERSON ET AL Ready to Nap Behind the Wheel? The Road to Self-Driving Cars Remains a Hidden Obstacles for Google’s Self-Driving Cars: Impressive Progress Hides supra RENDS ART T _4.15. Autonomous Vehicles and the Law in Florida in Law the and Vehicles Autonomous M. A P INAL _F Staff Analysis, H.B. 599, Reg. Sess. (Fla. 2012). (Fla. Sess. Reg. 599, H.B. Analysis, Staff Beiker, Beiker, Operator error accounts for over 95 percent of all automobile automobile all of percent 95 over for accounts error Operator IGITAL AMES 33 See Id. Id. Id. Id. See Each of these three categories is discussed briefly below. , D Dan Carney, Carney, Dan J Lee Gomes, Gomes, Lee 32 Fully automated technology is “very early stage technology.” Automobile accidents in the United States are a serious public health The benefits of AVs fall into three categories: (1) safety; (2) Despite Despite these current limitations, experts in the field of self-driving 29 ACKOWSKI 26 27 28 29 30 31 32 33 25 M K B. Current Technology LimitationsTechnology Current B. efficiency; and (3) mobility. A. Safety Safety A. concern. Major Limitations of Google’s Quest for Automated Driving crumpled piece of paper, so the car will try to drive around . . . either. [T]he car can’t detect potholes or spot an off.” uncovered manhole if it isn’t coned car’s sensors mean that it “can’t tell if a road obstacle is a rock or a Long One future-or-almost-here. www.technologyreview.com/news/530276/hidden-obstacles-for-googles-self-driving-cars. Google’s Google’s fully autonomous car can “extra operate cautious on driving a to roadway avoid preparations without have been made beforehand.” making any a . . mistake. only has if many intricate unresolved issues including . . Other . issues “big, [and] include open driving lots parking or garages multilevel in snow or heavy being blinded rain. when the sun is directly behind a light.” or monitoring by a human operator.”) (emphasis added). (emphasis operator.”) human a by monitoring or 2015] 13 - M vehicles (academics, engineers, insiders) agree researchers, that and between 2015 metrics.safety all humanin surpass drivers automobile and 2025 industry fully automated AVs will and mobility when it enacted statutes authorizing the use of AVs on public roads. (2012). Collision Between Autonomous Vehicles and the Liability System C Y 37792-fiu_11-1 Sheet No. 116 Side A 04/28/2016 10:11:02 A 04/28/2016 116 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 116 Side B 04/28/2016 10:11:02 M K 38 C Y OTOR M ., DOT HS (Nov. 8, 2014, Drug and and Drug DMIN 39 [Vol. 11:221 11:221 [Vol. ATIONAL A ORBES , F AFETY S Level 4 technology is is technology 4 Level 40 RAFFIC T (2008)). ., DOT HS 811.059, N URVEY IGHWAY S Autonomous Vehicles for Personal Transport: H DMIN ) 4/27/16 3:30 PM L A ’ AT 41 ELETE D Simply put, self-driving cars are safer safer are cars self-driving put, Simply AUSATION AFETY 37 OT C note 31, at 1322) (discussing the ability of “autonomous “autonomous of ability the (discussing 1322) at 31, note S N Given that operator error is the major cause cause major the is error operator that Given O 35 FIU Law Review Law FIU (D RASH supra 31 (2008), www-nrd.nhtsa.dot.gov/Pubs/811059.PDF (cited in in (cited www-nrd.nhtsa.dot.gov/Pubs/811059.PDF (2008), 31 C RAFFIC T DOCX URVEY 226. S EHICLE note 3, at 1150 (“There is clear evidence that . . . complete vehicle vehicle complete . . . that evidence clear is (“There 1150 at 3, note (Social Science Research Network, Working Paper, 2011), 2011), Paper, Working Network, Research Science (Social note 33, at xiv. note 33, at 16. V The Massive Economic Benefits of Self-Driving Cars PAGE IGHWAY Matthew Moore & Beverly Lu, note 3, at 1149 (citing N (citing 1149 at 3, note supra H supra supra OTOR , , L _4.25 ’ M AUSATION supra AT C INAL xiv (2014), www.rand.org/pubs/research_reports/RR443-1.html. In the United States in 2010, “32,788 people were killed in in killed were people “32,788 2010, in States United the In Beiker, Beiker, N _F 34 note 3, at 1149) (Road conditions, weather, and technical failure account for the remaining remaining the for account failure technical and weather, conditions, (Road 1149) at 3, note at 15. NDERSON NDERSON RASH See See ATIONAL See generally Id. A Ozimek, Adam A Beiker, Beiker, C In addition to saving lives and reducing injuries, the use of AVs will will AVs of use the injuries, reducing and lives saving to addition In supra 36 The Insurance Institute for Highway Safety (IIHS) has examined the Many families now own more than one car, to satisfy the needs of two of two needs the to satisfy car, one than more own now families Many working spouses and a teenager or two. When a single one car person can drop off at work, and person, and then shuttle the then kids to school and after-school events, and drive home to drop then off pick the up the next parents at the end of the day, demand for cars may AVs are more convenient to share than traditional vehicles. vehicles. traditional than share to convenient more are AVs ACKOWSKI 37 38 39 40 41 34 35 36 EHICLE OLICYMAKERS motor vehicle traffic crashes.” traffic vehicle motor Beiker, percent.). five A Technology www.pickar.caltech.edu/e103/Final%20Exams/Autonomous%20Vehicles%20for%20Personal%20Trans Assessment port.pdf (cited in Marchant & Lindor, autonomy can significantly reduce property damage, injuries and casualties.”). casualties.”). and injuries damage, property reduce significantly can autonomy Automobile features categorized at the level 0 and level 1 such of automation, as lane departure prevent warning an estimated and one-third of forward fatal automobile collision accidents. warning, could that “AV technology can dramatically reduce the frequency of crashes.” than human-operated cars. human-operated than likely potential impact that AVs will have on automobile safety, concluding P V 226 accidents. 13 - M 9:28 PM), www.forbes.com/sites/modeledbehavior/2014/11/08/the-massive-economic-benefits-of-self- driving-cars. of these fatalities, it follows that reducing or even completely removing the role of the operator will lives. decrease the number of accidents thus saving reduce property damage as well. capable of eliminating these underlying human conditions by allowing the automobile. the of control take to AV B. Efficiency B. alcohol impaired drivers, distracted drivers, and cause fatigued of 40 drivers percent of are fatal automobile the accidents. 811.059, N 811.059, vehicles to reduce the frequency and/oraccidents”).frequency traffic of the reduce severity to vehicles 37792-fiu_11-1 Sheet No. 116 Side B 04/28/2016 10:11:02 B 04/28/2016 116 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 117 Side A 04/28/2016 10:11:02 , . AW L RANSP T note 13, at at 13, note EXAS BOVE THE supra , , T , A 227 Individuals with with Individuals There is also the the also is There 48 43 note 3, at 1151. supra See The Future of Driving Beiker, AV technology counters both of of both counters technology AV 2009 Urban Mobility Report 44 see also see The same is true for teenagers. AV AV teenagers. for true is same The 47 ) 4/15/16 7:36 PM ELETE D How Google’s Self-Driving Car Will Change Everything OT . 1, 1 (2009)). 1 1, . N O YS 42 (D .S Why Driverless Cars Will Wreck Your Legal Practice NIV DOCX note 3, at 1150. note 3, at 1151. _4.15. Autonomous Vehicles and the Law in Florida in Law the and Vehicles Autonomous A&M U supra supra INAL Joseph A. Dallegro, _F , www.investopedia.com/articles/investing/052014/how-googles-selfdriving-car-will- (citing David Schrank & Tim Lomax, Lomax, Tim & Schrank David (citing EXAS at 1151. 45 T Id. Id. Beiker, See Beiker, systems communication vehicle as known technology into development and research is There Mark Herrmann, Herrmann, Mark HE 46 plummet. One car may provide ample transportation for not just family,several. but one Traffic congestion is part of the operation of traditional vehicles in the An important aspect of the benefit to mobility provided by AVs provided of to is mobility aspect the that An benefit important If one assumes that a person inside an AV is a passenger, then the Estimates suggest that the automobile insurance industry will benefit .T ACKOWSKI 43 44 45 46 47 48 42 M K NSTIT NVESTOPEDIA change-everything.asp (last visited Jan. 21, 2016); 21, Jan. visited (last change-everything.asp United States, and traffic congestion “leads to unproductive time of about thirty-six hours for the average commuter each year.” cognitive or visual impairments can ride as a passenger in an AV on the technology will surely impairments. benefit individuals with cognitive infrastructure. existing already utilize can or AV technology visual I legal-practice/?rf=1. existing infrastructure of our current roadway system becomes available to individuals who cannot operate traditional vehicles. AVs “can help elderly or disable citizens keep an active lifestyle such as running daily errands and maintaining social relationships.” (Aug. 11, 2014, 11:40 AM), http://abovethelaw.com/2014/08/why-driverless-cars-will-wreck-your- C. Mobility Mobility C. that require substantial and costly changes to infrastructure. 10:24:33AM–10:25:49AM. as the number of traffic accidents insurance is premium reduced reductions of by over AVs, $37 resulting billion per in States. year auto in the United I 2015] 13 - M (or take a nap) essentially transforming the vehicle into a virtual office (or bedroom). Second, in a autonomous, coordinated traffic transportation “can lead to scheme a fuel saving where in the 20-25%.” order all of vehicles are these inefficiencies. First, the tasks productive conduct to able thus and operator, an than rather passenger, AV allows the person inside to be a monetary monetary loss of $87.2 billion per year from vehicle fuel that is consumed needlessly because of traffic congestion. C Y 37792-fiu_11-1 Sheet No. 117 Side A 04/28/2016 10:11:02 A 04/28/2016 117 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 117 Side B 04/28/2016 10:11:02 M K But C Y § 3.44 3.44 § AW L [Vol. 11:221 11:221 [Vol. RIMINAL . § 316.183 (2015). ,C TAT AVE F .S A LA UTOMOBILES R. L A AYNE Although there are some strict strict some are there Although 50 ARADIGM OF ARADIGM P ) 4/15/16 7:36 PM This significantly hinders the benefit of of benefit the hinders significantly This 49 ELETE FIU Law Review Law FIU D EGAL the general rule is that vehicular crimes “have “have crimes vehicular that is rule general the OT . 21, 21 (2001) (citing W L Mens Rea Quagmire: The Conscience or Consciousness of the N 51 EV O HE (D DOCX .U.L.R .§316.85 (2015). (2015). .§316.85 T IV. T S TAT _4.15. .S ART INAL P LA , 29 W. Jeremy M. Miller, Miller, M. Jeremy _F F . § 316.191 (2015) (making racing on highways a strict liability misdemeanor of the first See See TAT Florida statutes governing motor vehicles classify most strict liability vehicular offenses as as offenses vehicular liability strict most classify vehicles motor governing statutes Florida .S However, However, in Florida, an AV must always be operated by a person and Most crimes have a mens rea element. rea a mens have crimes Most ACKOWSKI 49 50 51 LA F AV remotely? There is no difference child. whatsoever. In The either event, same the goes person for who resulting a engaged harm, the which AV is ridiculous. is The liable harm for the than AV, other is but in here or no something defect situation any manufacturing is caused by either a the harm caused by a person who tells the AV, remotely, “drive to the high school.” mobility. mobility. A blind person still must rely on license, someone to with engage a the valid AV driver on his or her picked-up from behalf. high school also A needs a son licensed driver or to actually engage daughter being the AV. This may be as license simple remotely as engage having the a AV, person perhaps with remote by a use activation, valid of driver however, a smartphone. is This simple still as inconvenient allowing and a nowhere person individual, near without to a as engage driver an license, AV resolved if such on Florida recognized as his that an AV a or operates itself her blind and removes requirement the own. that the operator of an This AV have a valid issue driver license. If there would be is a malfunction in an AV with a the engaged driver blind a licensed if or AV the engaged occupant, person blind the if make what difference does it intent requirements [that] depend on a person being ‘in control’ of a motor “noncriminal traffic infraction[s], punishable as a moving violation.” F Criminal Law? 2000)). ed. (3d 228 massivea sameis very This today. independence exist in that increase roads provided by the mobility of AVs. A blind person could own (or share) AV an to run errands or pursue leisure activities rather than rely on relatives, friends, government sponsored aid workers, or public addition transportation. to In people with impairments, parents could send their school or daycare children without leaving to work. The family AV would function as chauffeur. flawless, and personal, a engaged by a licensed driver. 13 - M degree). see A. An Overview of Traditional MotorTraditional of Regulations Overview An and Laws Vehicle A. liability vehicular crimes, 37792-fiu_11-1 Sheet No. 117 Side B 04/28/2016 10:11:02 B 04/28/2016 117 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 118 Side A 04/28/2016 10:11:02 However, a a However, (3) offenses offenses (3) The analysis analysis The 61 54 64 229 with an intent intent an with 59 and (4) offenses offenses (4) and § 23612 (2012)). 55 ODE .C EH to commit an offense.”) (emphasis (emphasis offense.”) an commit to .V The important language from from language important The AL 63 specific intent . § 609.21 (2011)). 609.21 § . ) 4/15/16 7:36 PM TAT This element of intoxication itself requires requires itself intoxication of element This .S 62 ELETE INN D note 4, at 1158. OT N The Florida statute prohibiting driving under the the under driving prohibiting statute Florida The note 50, at 33 (defining recklessness as a conscious disregard for a a for disregard conscious a as recklessness (defining 33 at 50, note O supra 60 (D supra DOCX (2) offenses with an intent requirement; intent an with offenses (2) . § 775.051 (2015) (“Voluntary intoxication resulting from the consumption, . § 316.193(1)(a)–(c) (2015). 316.193(1)(a)–(c) § . note 3, at 1149–50. 53 TAT . § 782.071 (2015) (“Vehicular homicide is the killing of a human being, or the TAT . § 316.193(1)(a) (2015). 316.193(1)(a) § . (2015). 316.193(1) § . . § 316.192(1)(a) (2015). 316.192(1)(a) § . _4.15. Autonomous Vehicles and the Law in Florida in Law the and Vehicles Autonomous 57 , Miller, .S .S supra TAT TAT TAT TAT INAL LA LA In Florida, vehicular homicide is a felony a is homicide vehicular Florida, In .S _F .S .S .S F F There are four broad categories of vehicular offenses: (1) strict strict (1) offenses: vehicular of categories broad four are There at 1159 (Examples of strict liability vehicular offenses include “speeding infractions, infractions, “speeding include offenses vehicular liability strict of (Examples 1159 at 58 (“These include any vehicular crime that has a mens rea requirement—most notably, notably, requirement—most rea mens a has that crime vehicular any include (“These (using “automated enforcement of speeding and red-light-running” as an example) (citing (citing example) an as red-light-running” and speeding of enforcement “automated (using (using implied consent as an example) (citing C LA 52 LA LA LA 56 Id. Id. See, e.g. See Id. See Id. F F Douma & Palodichuk, Beiker, F F In Florida, the criminal offense of Reckless Driving requires an intent The discussion will focus on the criminal liability regime as it pertains ACKOWSKI 60 61 62 63 64 52 53 54 55 56 57 58 59 M K vehicle.” element of “willful or property.” wanton disregard for the safety of persons or known danger). known driving without proof of insurance, and even parking tickets.”). parking even and insurance, of proof without driving M (citing homicide.”) vehicular criminal element of recklessness. prima facie element of the DUI influence offense of is that an the intoxicating person substance normal faculties are is impaired.” “to under the the extent that the person’s liability offenses; 2015] 13 - M added). killing of an unborn child by any injury to the mother, caused by another.”). to, harm bodily great or of, death the the cause to likely manner reckless a in another operation of a motor vehicle by influence (DUI) does not contain an express intent element. injection, or other use of alcohol or other defense controlled to substance as any described offense in proscribed chapter 893 by admissible is law. not to Evidence a show of that a the defendant defendant’s lacked voluntary the intoxication is not “where the owners of vehicles are vicariously liable for the actions of drivers.” the control of the vehicle. Strict because liability one offenses of the pose strongest an promises of interesting AVs flawlessdriver. is issue a car that always has a to offenses that require: (1) an intent element; and (2) a person be in control of the vehicle. Reckless driving, vehicular manslaughter, and driving under the influence all have an intent element as well as require a person to be in 652 ILCS 5/11-208.88 (2011)). 5/11-208.88 ILCS 652 Florida’s DUI statute, as it pertains to this Comment, is the phrase person “if is the driving or in actual physical control of a vehicle.” that require “a person having control of a vehicle;” more than strict liability, more at than least strict liability, implicitly. C Y 37792-fiu_11-1 Sheet No. 118 Side A 04/28/2016 10:11:02 A 04/28/2016 118 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 118 Side B 04/28/2016 10:11:02 . M K NN C Y 627. AWS . A .L As of of As These These TAT Automated 68 65 OMP .S .C EV [Vol. 11:221 11:221 [Vol. Title XXIII, XXIII, Title ICH .R 69 EV This section will will section This The 2012 Florida Florida 2012 The 67 71 . 411, 516 (2014) (contending EV Bryant Walker Smith, § 50-2352 (2015); M (2015); 50-2352 § see also ODE .A&ML.R . § 316.86 (West 2015); N EX note 66, at 1097). NN .A , 1 T infra TAT ) 4/15/16 7:36 PM .S .§316.003(25)(2015)(defining an operator, generally); § generally); operator, an .§316.003(25)(2015)(defining An examination of these enacted statutes statutes enacted these of examination An 316.85 (2015) (establishing AV operator’s requirements and LA ELETE 316.86 (establishing AV testing procedures); § 319.145 (2015) 66 TAT FIU Law Review Law FIU D .S . 1085, 1096 (2014); OT N . §§ 316, 319 (2015). 319 316, §§ . LA EV O “Somebody Grab the Wheel!”: State AV Legislation and the Road to a (D TAT .S .L.R §370(et21) ..C D.C. 2015); (West 38750 § DOCX note 66, at 1118. LA ARQ F ODE .§316.003(90)(2014). _4.15. .C supra EH TAT In Florida, an “AV” is defined as “[a]ny vehicle equipped with with equipped vehicle “[a]ny as defined is “AV” an Florida, In INAL , 97 M .V 70 Andrew Swanson, _F .S AL LA See See generally See Swanson, F are Act effective July 1, 2012, ch. 2012-174, 2012 Fla. Laws 1, 101. statutes six These F C Currently, Currently, Nevada, California, Michigan, the District of Columbia, and 1. The Laws of Florida of Laws The 1. The operation of AVs in Florida became legal on July 1, 2012. ACKOWSKI 67 68 69 70 71 65 66 . §§ 257.663, 257.665 (West 2014); F NN that despite express legislation, AVs are probably legal to United operate on public States streets anywhere because in the “[c]urrent operation”).their complicate or introduction their discourage nonetheless law probably does not prohibit automated vehicles—but may (requiring AVs “to meet federal standards and regulations,” have an operator disengage system, have a malfunction alert, obey state traffic laws, and allowing federal regulations preemption); and § session laws required that “[b]y Highway February 12, Safety 2014, the and Department [Legislature] of recommending Motor additional legislative or regulatory action that Vehicles shall submit a report to the Motor Motor Vehicles, of operations. the Florida Statutes governs almost all of AV A 230 to determine what “in actual physical control of Comment.this B of AV III, in fully Part discussed a in is of depth context a vehicle” means in the AVs Regimeof Legal Current The B. Florida have enacted laws specifically governing the use of AVs. 13 - M 316.003(90) (2015) (defining an AV); § 316.305(3)(b)(7) (2015) (exempting an AV operators from autonomous technology. . . The . technology that has the capability term to drive the . . . vehicle ‘autonomous active without the control or technology’ monitoring by a means human operator.” Vehicles Are Probably Legal in the United States § 482A.100 (LexisNexis 2013) (cited in Swanson,in (cited 2013) (LexisNexis 482A.100 § statutes explicitly legalize the operation of AVs on normal are used roadwaysby traditional vehicles; the self-driving car is permitted to share the that road with the traditional car. January 1, 2015, Florida has six statutes that pertain to AVs. defining “operator” relating to an AV); § examine the statutes of Florida, Nevada, California, and Michigan.and California, Nevada, Florida, of examinestatutes the indicates that “[d]river liability appears to be a legislators foremost proposing concern autonomous for vehicle the legislation.” Florida’s ban on texting while driving); § 0653(6) (2015) (permitting the Office technology”). driving autonomous with of “equipped Insurance Regulation to discount insurance on a vehicle National Regime 37792-fiu_11-1 Sheet No. 118 Side B 04/28/2016 10:11:02 B 04/28/2016 118 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 119 Side A 04/28/2016 10:11:02 The The The The 73 After After 80 82 After a a After UTONOMOUS 81 ,A 231 EHICLES Preliminary Statement of V The DHSMV report report DHSMV The 79 OTOR M AFETY AND S 72 During those twenty-one months, the the months, twenty-one those During The DHSMV report references AV AV references report DHSMV The 76 74 ) 4/15/16 7:36 PM IGHWAY H 75 ELETE , at 11–14 (2013), www.nhtsa.gov/staticfiles/rulemaking/pdf/ OF OF D . T ’ OT N EP O note 73, at 6 (2014). .D (D Nat’l Highway Traffic Safety Administration, Administration, Safety Traffic Highway Nat’l 78 LA supra DOCX ,F see also Yet despite all this effort, the DHSMV created a report that that report a created DHSMV the effort, this all despite Yet _4.15. ONES Autonomous Vehicles and the Law in Florida in Law the and Vehicles Autonomous 1 (2014), www.flhsmv.gov/html/HSMVAutonomousVehicleReport2014.pdf www.flhsmv.gov/html/HSMVAutonomousVehicleReport2014.pdf (2014), 1 77 .J at 3; 3; at INAL _F Act effective July 1, 2012, ch. 2012-174, 2012 Fla. Laws 1, 101. AV Report, at 1–7 (The DHSMV report actually contains only six pages of text (2,779 words); the the words); (2,779 text of pages six only contains actually report DHSMV (The 1–7 at EPORT at 3–6 (2014). at 3. at 4. at 2 (footnote omitted). ULIE L R Id. See id. Id. Id. Id. Id. Id. See See Act effective July 1, 2012, ch. 2012-174, 2012 Fla. Laws 1, 101. J The Department of Highway Safety and Motor Vehicles (DHSMV) The DHSMVThe DHSMVThe flawed. is months report twenty-one had to The DHSMV report relies heavily on the National Highway Traffic ACKOWSKI 79 80 81 82 72 73 74 75 76 77 78 M K EHICLE may may be required for the autonomoustechnology.” with equipped safe testing and operation of motor vehicles and outreach.” is a merepages. a seven is submitted the required report (DHSMV report) on February 10, 2014. states to determine if Florida’s current laws are satisfactory.” DHSMV “reviewed NHTSA’s recommendations and practices in other Policy Concerning Automated Vehicles Automated_Vehicles_Policy.pdf. The NHTSA recommends that self-driving of testing on-road that “Ensure (2) safely;” vehicle self-driving a operate to how understands states: (1) “Ensure that the vehicles driver minimizes risks to other road users;” environmental conditions suitable (3) for the capabilities “Limit of the tested self-driving testing vehicles;” (4) “Establish operations to roadway, reporting traffic and requirements to monitor the “Ensure that performance the process for of transitioning from self-driving self-driving mode to driver technology control is safe, during simple, and testing;” (5) DHSMV report states that the “current Florida laws are brief, licensed driver, unless on requiring a closed course, to monitor the a autonomous mode and intervene, when necessary.” [hereinafter AV Report]. AV [hereinafter review of the NHTSA Florida recommendations, laws the satisfy report finds only that four current of the eight recommendations. V 2015] 13 - M submit its report, action,” “recommending to the Florida Legislature. additional legislative or regulatory is careful to point out that these are just recommendations and the “NHTSA has not established safety standards for autonomous vehicles.” Safety Administration (NHTSA) recommendations. legislation enacted in Canada. Ontario, and Michigan, Nevada, California, the District of Columbia, DHSMV not only “participated in the Autonomous Vehicle Summit,” but was “also involved extensively in autonomous vehicle research, planning, first page is a cover page.). cover a is page first C Y 37792-fiu_11-1 Sheet No. 119 Side A 04/28/2016 10:11:02 A 04/28/2016 119 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 119 Side B 04/28/2016 10:11:02 M K 90 C Y After After 83 [Vol. 11:221 11:221 [Vol. which is a clear clear a is which 88 The DHSMV report claims claims report DHSMV The 89 Ultimately, the DHSMV simply simply DHSMV the Ultimately, 86 Further, Florida’s current laws require require laws current Florida’s Further, ) 4/15/16 7:36 PM 85 ELETE FIU Law Review Law FIU D 84 OT N O (D note 73, at 7 (2014). note 73, at 2 (2014). DOCX 87 supra supra . § 316.85(2) (2014) (“[A] person shall be deemed to be the operator of an AV _4.15. TAT INAL .S _F (“[T]here are no national safety standards and many unknowns.”). LA Operation and Testing Purposes Testing and Operation Id. Id. Id. Id. Id. AV Report, F AV Report,
Not only is the DHSMV report flawed in its single recommendation 1. Why, Why, after finding that the current laws Florida meet only half of the ACKOWSKI 83 84 85 86 87 88 89 90 that any AV operated in Florida “is required to comply with existing federal and state safety and traffic regulations.” The DHSMV report also manufacturers concludes that of “[c]urrent autonomous Florida technology laws to allow test on Florida’s public required safety features or systems;” and (8) “Ensure that self-driving test vehicles record information control.”vehicle of lass or crash ina technologies of control event automated the the of status the about timely;” (6) “Self-driving test vehicles should have the capability of detecting, recording, and informing the driver that the installation system and of operation automated of any technologies self-driving has vehicle malfunctioned;” technologies (7) does not “Ensure disable that any the federally 232 establishing the metric for determining whether Florida’s current laws are satisfactory, and then finding that they are not, the DHSMV makes a single recommendation, “The Department recommends that the State of establish Florida working relationships with technology developers to motor encourage these business vehicle opportunities.” manufacturers and 13 - M DHSMV report clearly references both section 316.85 and 316.86. This is evident in the report’s autonomous statement technology that is “[t]he person deemed who the engages operator,” the and lack of proposals, but it misinterprets Florida’s current AV laws. The that “the Florida Legislature authorized the testing of AVs in Florida.” reference to Florida Statute section 316.85(2). throws up its hands and declares that “[p]olicy-making at best.” at difficult, this juncture is operating in autonomous mode engage.”). when the person causes the vehicle’s autonomous technology to recommendation and go on to propose no changes to Florida law rather than offer solutions (including solutions from other states’ statutes)? In part, the DHSMV correctly recommendations and standards. understands that the difference between NHTSA’s recommendations, does the DHSMV make a single all due consideration, the DHSMV no changes “proposes to existing Florida time.”this lawsat rules and 37792-fiu_11-1 Sheet No. 119 Side B 04/28/2016 10:11:02 B 04/28/2016 119 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 120 Side A 04/28/2016 10:11:02 When When 94 233 95 : 96 : 98 In fact, of the six Florida statutes that that statutes Florida six the of fact, In J. 26, 28 (2015) (“Autonomous vehicles may be used 93 ) 4/15/16 7:36 PM AR .B note 73. Navigating the Road Ahead: Florida’s Autonomous Vehicle ELETE LA D OT supra N O , 89 F (D DOCX .§§316.003(25), 316.003(90), 316.305(3)(b)(7), 316.85, 316.86, 319.145, and and 319.145, 316.86, 316.85, 316.305(3)(b)(7), 316.003(90), .§§316.003(25), AV Report, 92 TAT . § 316.85 (2014). 316.85 § . _4.15. Autonomous Vehicles and the Law in Florida in Law the and Vehicles Autonomous John W. Terwilleger, .S The DHSMV report does not address AV operation for non- for operation AV address not does report DHSMV The TAT INAL LA 91 97 _F .S F at 7. LA But see See See generally See Id. The text of Florida Statute § 316.85 is identical to the session law text in which it was was it which in text law was session it the to which in text identical law is session 316.85 § the to Statute identical Florida is 2012 Fla. Laws ch. 2012-174, 100–01. of text 316.86 § The Statute Florida F of text The (1) Vehicles equipped with autonomous technology may be operated on roads in this state designated by employees, by contractors, or manufacturers other research persons of organizations autonomous technology, associated or by with accredited educational mode. (1) A person who possesses a valid driver license may operate an AV autonomousin mode. (2) For purposes of this chapter, unless the context otherwise requires, a person shall be deemed to be the autonomous mode operator when of the an person AV causes the operating vehicle’s in autonomous technology to engage, regardless of whether the person is physically present in the vehicle while the vehicle is operating in autonomous Operation of vehicles equipped with autonomous technology on roads for testing purposes; financial responsibility; exemption from liability vehicle.—converts party manufacturerthird for when The text of Florida Statue section 316.85 is 316.85 section Statue Florida of text The I contend that the DHSMV report mistakenly interprets Florida’s AV AVs; operation.—AVs; ACKOWSKI 92 93 94 95 96 97 98 91 M K roadways.” Statute and Its Effect on Liability testing of AV are sections 316.85 and 316.86 of the Florida Statutes, which laws. session Florida 2012 the by created both were all of the applicable legislative intent of statutes these statutes, it are is clear that the considered operation of AVs non-testing for purposes together, is permitted on the along public roadways of Florida. with Most the pertinent to the discussion of whether current Florida laws only permit testing purposes. testing enacted. 2012 Fla. Laws ch. 2012-174, 100. 2012-174, ch. Laws Fla. 2012 enacted. 101. 2012-174, ch. Laws Fla. 2012 enacted. The text of Florida Statute section 316.86 is 316.86 section Statute Florida of text The 2015] 13 - M 627.0653(6). statutes to limit AV to testing only. pertain to AVs, only section 316.86 mentions “testing purposes.” only for testing purposes.”). testing for only C Y 37792-fiu_11-1 Sheet No. 120 Side A 04/28/2016 10:11:02 A 04/28/2016 120 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 120 Side B 04/28/2016 10:11:02 M K C Y The title title The The plain plain The 100 [Vol. 11:221 11:221 [Vol. 102 ,” establishes that for testing purposes ) 4/15/16 7:36 PM ELETE 99 FIU Law Review Law FIU D .§316.1934. OT N TAT O 103 .S (D LA , F .§316.003(25), 316.003(90), 316.305(3)(b)(7), 316.85, 316.86, 319.145, and and 319.145, 316.86, 316.85, 316.305(3)(b)(7), 316.003(90), .§316.003(25), DOCX . §§ 316.001–316.86 (2014). 316.001–316.86 §§ . TAT . § 316.86 (2014). 316.86 § . TAT . § 316.85(2) (2014). 316.85(2) § . added). (emphasis (2014) 316.86 § . _4.15. .S .S See, e.g. See, TAT TAT TAT LA LA INAL .S .S .S F F _F LA LA LA While the Florida statutes do not define the term “testing,” that that “testing,” term the define not do statutes Florida the While See See F F F 101 institutions, institutions, for the purpose of purposes, a human operator testing shall be present in the AV the such that he or technology. For she has the ability to testing monitor the vehicle’s performance and intervene, if necessary, unless the vehicle is being tested or closed demonstrated on course. a Before the performing start the testing must submit to the department an of instrument of testing in insurance, this surety state, bond, or the proof of entity million. amount$5 departmentthe of in self-insurance acceptable to the into an AV shall not be liable in, and shall have a dismissed defense to and be from, any manufacturer by any person injured legal due to an alleged vehicle action defect caused by the conversion of brought the vehicle, or by equipment installed by against the converter, the unless the alleged defect was original present in the vehicle manufactured.originally as (2) The original manufacturer of a vehicle converted by a third party The scope of these two sections is drastically different, and based on The DHSMV’s interpretation creates inconsistency between the ACKOWSKI 99 100 101 102 103 term, as it relates to AVs, is only used in section 316.86. 234 13 - M language of section 316.86, which begins, “Operation of vehicles equipped with autonomous technology on roads section 316.86 is narrow in its statute. scope, and does not apply to any other 627.0653(6). The use of the term “testing” in Chapter 316 of impairment. driver the Florida Statutes generally relates to the legislative intent behind the statutes. the behind intent legislative the the plain language of the statutes, it is clear that section 316.85 is broad and section 316.86 is narrow. Section 316.85(2) begins with the language, “For purposes of this chapter,” clearly establishing that this subsection broadly applies to the entirety of Chapter 316 of the Florida Statutes. various Florida laws that govern AVs and violates the legislative intent. An interpretation of the plain language of the statutes leads to the that conclusion current Florida laws do not limit the public roadways to testing purposes. This conclusion operation is further bolstered by of AVs on Florida’s any purpose, not solely for testing purposes, because this section applies to the testing section (316.86) as well as the UniformControl. Traffic entirety of Chapter 316, State language of section 316.85(2) demonstrates that AVs may be operated for 37792-fiu_11-1 Sheet No. 120 Side B 04/28/2016 10:11:02 B 04/28/2016 120 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 121 Side A 04/28/2016 10:11:02 107 235 In contrast, section section contrast, In 105 ) 4/15/16 7:36 PM ELETE D OT N O (D DOCX . § 316.85(1) (2014). 316.85(1) § . (2014). 316.85(1) § . (2014). 316.85(2) § . (2014). 316.86(1) § . _4.15. Autonomous Vehicles and the Law in Florida in Law the and Vehicles Autonomous The specific limitations on operators of AVs for testing testing for AVs of operators on limitations specific The TAT TAT TAT TAT INAL .S .S .S .S 106 108 _F in the AV at all times, thus making the language of Florida Florida of language the making thus times, all at AV the in This statute does not place any other restrictions or requirements requirements or restrictions other any place not does statute This LA LA LA LA Id. 109 As of January 2015, the state of Florida does not offer any testing, certification, or or certification, testing, any offer not does Florida of state the 2015, F January of As F F F 104 Another inconsistency is who may operate an AV. Florida Statutes This interpretation, that the text of section 316.85(2) is merely a Staying within the four corners of these statutes, the next inconsistency If the DHSMV report is correct by indicating that, in Florida, an AV ACKOWSKI 104 105 106 107 108 109 M K section 316.85(1) permits any person with a valid driver license to operate an AV. 316.86(1) limits the contractors, operation or other of persons designated an by [manufactures institutes].” or AV educational in Florida to “employees, that: (1) section 316.86 requires that “a human operator shall be present” Statute section 316.85(2), “regardless of whether the person is present” physically excess and surplus text report’s that assertion serves that any no AV purpose. operation purposes, although not stating maythis expressly, interpret these portions of The in DHSMV Florida is solely for the testing statute to coexist. Perhaps the language in section 316.85(2) is simply meant to attach culpability to a tester-operator that, for whatever remotely.emptyAV an engages reason, prophylactic to assign legal blame in the event of a mishap, is absurd given Compare this to Florida Statutes section 316.86 which requires that “[f]or testing purposes, a human operator shall be present in the AV such that he or she has intervene.” the ability to monitor the vehicle’s performance and purposes established by section 316.86 makes sense when construed this narrowly; section likewise, is the less restrictive mandate AV operators on established in permissible section 316.85 makes sense when this section construed. broadly is concerns whether a person need be inside an AV. Florida Statutes section 316.85 uses language that expressly “regardless indicates of whether that the person an is physically AV present in may the vehicle.” operate 2015] 13 - M may only be operated for testing purposes, then may “a shall be only be for purposes, human operator testing operated present” on the potential operator, such as having a Florida driver license, passing a test using an AV, taking an endorsement AV on certification the course, or potential having operator’s an license. AV endorsements pertaining to AVs. to pertaining endorsements C Y 37792-fiu_11-1 Sheet No. 121 Side A 04/28/2016 10:11:02 A 04/28/2016 121 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 121 Side B 04/28/2016 10:11:02 M K C Y [Vol. 11:221 11:221 [Vol. This drastically drastically This 116 , http://NovaScotia.ca/natr/ CA . note 73, at 2 n.1. supra OVASCOTIA , N Although term “closed course” is is course” “closed term Although AV Report, 112 and (2) section 316.86’s insurance insurance 316.86’s section (2) and ) 4/15/16 7:36 PM see also see 110 If these statutes are construed to limit AV AV limit to construed are statutes these If ELETE the plain usage of the term means roadways roadways means term the of usage plain the Interpreting Florida laws to limit AV use “for 117 FIU Law Review Law FIU D 113 114 OT N O (D DOCX . § 316.003 (2014); 316.003 § . . § 627.0653(6) (2014) (“The Office of Insurance Regulation may approve a TAT . § 316.85(2) (2014). 316.85(2) § . (2014). 316.86(1) § . There is no logical reason to conclude that section section that conclude to reason logical no is There Off-highway Vehicles Closed Courses _4.15. , .S TAT 111 TAT TAT LA INAL .S .S .S F _F LA LA LA 115 See, e.g. Id. Id. See Id. F F F The need to assign culpability to a specific operator is not necessary Yet another inconsistency that results from construing Florida laws to ACKOWSKI 111 112 113 114 115 116 117 110 given section 316.86’s requirement that “the entity must submit to [of and the Safety an Highway performingMotor department Vehicles] the testing instrument of . . . insurance in the amount of $5 million.” legally responsible for unoccupied AV. Further, if interpreted to the apply to entirety of Florida’s AV laws, section 316.86 the is inconsistent financial with section responsibility 627.0653. Section clause 627.0653(6) of authorizes the Office of Insurance Regulation insurance premiums to for AVs. approve a discount on limits the need to assign legal blame to the operator of an AV on a humanoperator) a without mayplace testing take AV place only closed (the course because the testing entity (with their $5 million dollars of insurance) is requirements. premium discount to any rates, protection, rating and collision schedules, . . . coverages or if ratings the technology.”). manuals insured vehicle for is liability, equipped personal with injury autonomous driving testing purposes” only means that a human operator will be present in the AV when the AV is on coexist public with roadways, the but plain this language interpretation from operate cannot 316.85 “regardless that of confirms an whether AV the vehicle.” may person is physically present in the operation to testing purposes only, then entity the requirement have that the $5 testing AVs. for insurance discounted of authorization million dollars of insurance coverage contradicts the restrict AVs to testing only is seen in Florida’s ban on texting while driving. 236 during the testing of an AV; 13 - M not defined by Florida law, ohv/courses.asp (last visited February 16, 2016) (“[A] closed course is a facility which is designed and .”). . . . environment controlled safe, a provide to managed not accessible to the public. the to accessible not 316.86(1) 316.86(1) relies on section 316.85(2) to determine the operator of an AV on public roads for testing purposes. Section 316.86 not only requires that the operator of the AV be physically present in the operator to AV, be present in it the testing AV, requires “unless the a vehicle is being human tested or demonstrated on a closed course.” 37792-fiu_11-1 Sheet No. 121 Side B 04/28/2016 10:11:02 B 04/28/2016 121 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 122 Side A 04/28/2016 10:11:02 of of Given Given 120 237 for the purpose of testing or operation There is no mention of of mention no is There Section 316.86 requires requires 316.86 Section 122 119 ) 4/15/16 7:36 PM ELETE D OT Here, omitted language is just as important as as important as just is language omitted Here, N O Similarly, section 316.86 does not use a limiting limiting a use not does 316.86 section Similarly, 121 (D Common sense dictates that the lack of restrictors in in restrictors of lack the that dictates sense Common .” 123 124 DOCX . § 316.85 (2014). 316.85 § . TAT . § 316.305(1)(d) (2014). 316.305(1)(d) § . (2014). 316.305(3)(b) § . (2014). 316.86(1) § . added). (emphasis (2014) 316.85(1) § . _4.15. Autonomous Vehicles and the Law in Florida in Law the and Vehicles Autonomous .S TAT TAT TAT TAT LA INAL .S .S .S .S This law “does not apply to a motor vehicle operator who is ...... is who operator vehicle motor a to apply not “does law This F _F LA LA LA LA 118 See id. See F F F F Id. The best support for the DHSMV’s interpretation that Florida’s current does not prohibit or specifically regulate the The operation of AVs for purposes other than testing is supported by It is the intent of the Legislature to encourage the safe testing, and development, operation of motor vehicles with autonomous technology on the public roads of the state. The Legislature finds that the state ACKOWSKI 118 119 120 121 122 123 124 M K The Florida Ban on Texting While Driving Law allows law enforcement to “issue citations as a secondary offense to driving.” persons who are texting while 2015] 13 - M that the operator of an AV for testing purposes monitor must the have vehicle’s “the performance ability and to intervene, if necessary.” term such as “only.” to be distracted by texting. The reasonable interpretation is that exemption for AVs provided by the Florida Ban on Texting While Driving Law exists because, in Florida, AVs may be operated on public roadways for purposes testing. than other laws only permit the operation of section AVs 316.86, for “Vehicles testing equipped with purposes autonomous is technology found may operated in be on roads in this state by [specified testing persons], the technology this heightened concern for an operator’s focused attention on an AV being tested, the exemption provided to AVs by the Florida Ban on Texting While Driving Law is contradictory because it specifically allows an AV operator section 316.85 means AVs may be operated in Florida for purposes than other testing. A plain purposes” language means that the phrase construction is self-limiting. It of is meant to confine the the purposes. testing for used only AVs 316.86(1) to section of provisions phrase “for testing intent of Florida’s AVthe statutes’ legislative intent. The legislative statutes laws: session Florida 2012 the within found is [o]perating [o]perating an . . . AV in autonomous mode.” what is included. Section 316.85 places a single restriction on the operation of an AV, possession of a valid driver license. testing purposes only. where an AV may operate, nor is there any mention of AV operation for C Y 37792-fiu_11-1 Sheet No. 122 Side A 04/28/2016 10:11:02 A 04/28/2016 122 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 122 Side B 04/28/2016 10:11:02 M K 128 C Y The The 130 it was still still was it 125 [Vol. 11:221 11:221 [Vol. 126 note 66). note 66). supra supra operated for transportation transportation for operated or On February 15, 2012, Nevada’s Nevada’s 2012, 15, February On 131 ) 4/15/16 7:36 PM 132 Florida law does provide that a driver driver a that provide does law Florida The Nevada statute offers key definitions for for definitions key offers statute Nevada The ELETE FIU Law Review Law FIU D 127 129 OT N O (D § 482A (2014) (cited in Swanson, . § 482A.100 (2014) (cited in Swanson, Swanson, in (cited (2014) 482A.100 § . note 66, at 1118. note 66, at 1110–11. ODE DOCX . § 316 (2014). 316 § . .C TAT TAT . § 316.665(2) (2014). 316.665(2) § . supra supra .S _4.15. .S DMIN EV TAT LA INAL .R .A .S F _F EV EV LA See id. See 2012 Fla. Laws ch. 2012-174, 99 (emphasis added). F Swanson, Swanson, N N 2. The Laws of Nevada of Laws The 2. An examination of Nevada’s legislation governing the use of AVs autonomous technology in motor vehicles on publicroads. on motor vehicles in autonomous technology The Nevada’s DMV regulations “anticipate the hindering of existing It is important to note that unlike many other sections of Florida ACKOWSKI 125 126 127 128 129 130 131 132 reveals that Nevada legislators do not want the issue of criminal liability to go before the courts as a matter of first impression without legislative intent to guide the judicial branch. legislation enacted in Nevada is not self-executing, rather it mandates that the Nevada Department of Motor Vehicles (DMV) govern adopts the regulations use to of AVs in the state. So even if the DHSMV is correct and AVs may only be operated for testing purposes, a person who violates this law is only subject to a suspension of driving privileges if an accident occurs. Regardless of the interpretation of teeth. lack laws those because enforcementdifficult laws, is AV Florida’s convicted of a violation of results any in an accident offense “may have prohibited his or her by driving privileges revoked.” chapter 316 that 238 approved by Governor Rick Scott and provides a lens by which to examine the statutes that were codified in order to help clarify the current state of the law. The phrase “testing or operation” is a clear indication that the Florida Legislature considers the use different than the operation of of AVs because of AVs the use of “or.” The for use of the word testing “or,” rather than purposes “and,” shows that something the Legislature is the aware that AVs can be used for testing purposes 13 - M vehicles, the possible malfunctions that may require user override, and the purposes. This is reflected in the enactment of sections 316.85 and 316.86 as separate pieces of legislation as well as the interrelationships between all laws. AV current Florida’s of Statutes Chapter 316, there are no specific punishments sections for violations 316.85 of or 316.86. DMV adopted such regulations. DMVsuch adopted the terms “autonomous system,” “AV,” and “manufacturer.” Although Although this text from the session law was not codified, 37792-fiu_11-1 Sheet No. 122 Side B 04/28/2016 10:11:02 B 04/28/2016 122 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 123 Side A 04/28/2016 10:11:02 note note supra The Nevada Nevada The 239 note 66, at 1120). 133 supra note 66, at 1118) § 482A.190(2)(g) (requiring AVs AVs (requiring 482A.190(2)(g) § supra 138 ty system or driver assistance see also id. This legislative scheme is designed designed is scheme legislative This 134 Seemingly with an eye towards both both towards eye an with Seemingly Additionally, the regulations require that that require regulations the Additionally, ) 4/15/16 7:36 PM 137 135 136 ELETE D OT N O (D § 482A.190(2)(b) (2014); (2014); 482A.190(2)(b) § § 482A (2014) (cited in Swanson, § 482A.190(2)(d) (2014) (cited in Swanson, § 482A.110(2)(b) (2014). note 66, at 1117. note 66, at 1118. ODE ODE ODE ODE DOCX .C .C .C .C supra supra _4.15. Autonomous Vehicles and the Law in Florida in Law the and Vehicles Autonomous DMIN DMIN DMIN DMIN INAL .A .A .A .A _F EV EV EV EV Swanson, N Swanson, N N N between the object AV and or another natural person vehicle, while the vehicle is operating in autonomous mode. The autonomous technology sensor data must be captured and stored in a read-only format by the mechanism so that the mechanism by an external device data capable of and downloading storing is retained until the data. extracted Such from data must the be preserved collision. The for provisions of this 3 paragraph do years not authorize or after require the date of the modification mechanism of any other to record data that is installed AVthe on compliancein withlaw. federal [Have] a separate mechanism in addition to, and other mechanism required separate by law, to capture and store the autonomous from, any technology sensor data for at least 30 seconds before a collision occurs The Nevada regulations place a premium on the safety of the other ACKOWSKI 133 134 135 136 137 138 M K uncertainty uncertainty of blame that my result from a tort suit.” a notification alert system activates when there is a autonomous malfunction technology with with the the intent that a passenger engage thus the alerted override will mechanism. to have a disengage system that can be activated “in multiple through the use of the manners, brake, the accelerator pedal and the steering including, wheel”) (cited in Swason, without limitation, 1120). at 66, 2015] 13 - M regulations regulations specifically state that they apply to fully AV systems and not to already existing ADAS such system, including, as without limitation, “a a system to safe provide electronic blind spot assistance, crash avoidance, emergency braking, adaptive parking cruise control, assistance, lane keep assistance, lane departure warnings and traffic jam and queuing assistance.” to prevent users of regime.”legal new a by regulated existing technology from “becoming unexpectedly vehicles and their drivers that share requires the an override switch, road a mechanism with that disengages AVs. the autonomous The regulation technology and allows the person control of the vehicle manually. that utilized the mechanism to take AV:any that Nevadarequire criminalthe regulations and liability, civil The requirement of “Nevada this DMV is already recording anticipating a situation mechanism wherein these demonstrates AVs are that the C Y 37792-fiu_11-1 Sheet No. 123 Side A 04/28/2016 10:11:02 A 04/28/2016 123 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 123 Side B 04/28/2016 10:11:02 M K 141 C Y This This AVs AVs while while 142 140 147 [Vol. 11:221 11:221 [Vol. note 66, at 1121). supra Of Frightened Horses and AVs: note 66, at 1121). . 1241, 1242 (2012). 1242 1241, . EV supra L. R LARA C Kyle Graham, Graham, Kyle ANTA ) 4/15/16 7:36 PM see also see , 52 S 52 , California law, like Nevada, requires the AV AV the requires Nevada, like law, California ELETE FIU Law Review Law FIU D 145 OT Such a device will no doubt be useful to to useful be doubt no will device a Such N O 139 § 227.00 (2012). (D § 482A.120(2) (2014) (cited in Swanson, §482A.120(2) (cited in Swanson, note 73, at 2. note 66, at 1121; ODE note 66, at 1121. at 66, note ODE ODE DOCX . § 316.85(2) (2014). 316.85(2) § . .C Florida AV law establishes operator liability by defining defining by liability operator establishes law AV Florida .C .C supra EH supra TAT supra 146 _4.15. .V .S DMIN DMIN § 227.22. § 227.44. However, there are some notable differences between the two two the between differences notable some are there However, AL LA INAL .A .A F C _F 143 The lack of similar language in Florida’s laws gives rise to to rise gives laws Florida’s in language similar of lack The EV EV See id. See See id. See Swanson, Swanson, N N AV Report, 144 3. The Laws of California of Laws The 3. California’s AV laws, as of February 2016, “are very similar to The Nevada regulations also include The a Nevada geographic regulations limitation.also include When the ACKOWSKI 139 140 141 142 143 144 145 146 147 states’ AV laws. A prime difference is California’s “[A] inclusion motor of vehicle the shall text, not be operated in roads autonomous in mode on California public except as permitted article.” . . . under the regulations in this determine not only civil liability, but criminal liability as well. provision of the regulations specific enables areas the where Nevada AVs will DMV responding operate, to to allowing control policy a the certain concerns humanwithout interaction. plasticity including in public fear of cars that drive Florida’s.” California AV law is more aggressive and requires the AV manufacturer’s agent to sign a document “binding” the manufacturer to the AV for liability manufacturer manufacturer to report motor vehicle accidents involving AVs to the state ten within days. the term “operator” to mean the person who engages the AV, To obtain a certificate to use establish that the the AV AV is in “capable of other being driven areas, in proposed geographic the the location in conditions compliance with of licensee the traffic laws the and other must laws applicable to drivers and motor vehicles” with that region. equipped equipped with some type of information would apparatus be that invaluable gathers to and determine would whether have stores been a sensory able natural to person utilize someas criminalsuch act, homicide.formvehicular of a disengage mechanism and prevent a Nevada DMV issues a license permitting the use of an AV, a certificate is issued allowing the AV to only operate within a specific geographic area. inconsistent interpretations of whether an AV testing purposes. California law also requires that AV can manufacturers have a be operated for non- test driver training program. 240 involved in accidents.” 13 - M Tort Law and Its Assimilation of Innovations of Assimilation Its and Law Tort 37792-fiu_11-1 Sheet No. 123 Side B 04/28/2016 10:11:02 B 04/28/2016 123 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 124 Side A 04/28/2016 10:11:02 158 150 This has has This 156 241 , www.dmv.ca.gov/portal/ 157 EHICLES V OTOR M T ’ EP .D AL ) 4/15/16 7:36 PM , C Michigan, unlike the other states, does not not does states, other the unlike Michigan, ELETE D 160 153 Public input on the proposed regulations closed closed regulations proposed the on input Public OT California DMV Driving Autonomous Car Developers Off the Road N 154 O Among the proposed regulations is a provision provision a is regulations proposed the Among § 227.16 (2012). (D 155 note 73, at 5. at 73, note . tit. 13, art. 3.7, § 227.68(c) (2015). 227.68(c) § 3.7, art. 13, tit. . ODE DOCX .C EGS If the application is granted by the state, the AV AV the state, the by granted is application the If California law also requires that a test driver have a valid valid a have driver test a that requires also law California supra R EH 151 _4.15. 152 Autonomous Vehicles and the Law in Florida in Law the and Vehicles Autonomous Richard Read, .V ODE Michigan, like Nevada but unlike Florida, requires AVs to to AVs requires Florida, unlike but Nevada like Michigan, § 227.04. § 227.20(a). 244. § , § 227.14(b). § 227.26(a). § 227.26(a)(1). AL INAL , The Car Connection (Feb. 23, 2016), www.thecarconnection.com/news/1102500_ California, like Florida and Nevada, requires $5 million of of million $5 requires Nevada, and Florida like California, .C 159 2013 Mich. Pub. Acts 231, § 36. C _F 149 AL 148 See e.g., See id. See id. See Id. See See id. See See id. See id. See id. Autonomous Vehicles in California C AV Report, 4. The Laws of Michiganof Laws The 4. Generally, Michigan’s AV laws are similar to Nevada’s AV laws. California, California, unlike Florida, has robust AV testing regulations. California’s AV laws are on course for a dramatic change. On ACKOWSKI 152 153 154 155 156 157 158 159 160 148 149 150 151 M K purposes. require $5 million dollars of insurance on an AV used for testing purposes, but rather requires only “proof satisfactory to the secretary of state that the the potential of driving AV developers out of the state. the of out developers AV driving of potential the dmv/detail/vr/autonomous/auto. stating that AVs “shall only available be to the general public on operated no more than a by leased basis.” the manufacturer or made California California requires an AV testing entity to submit a testing application. Michigan, Florida, and Nevada all define an AV operator as the person that that as person the an AV operator define all Nevada and Florida, Michigan, engages the AV technology, that whether person or is physically not present in the AV. The fee for the application is $150 for the first ten AVs test and up to twenty drivers; each additional additional ten $50. AVs and twenty test drivers cost an have a special license plate. 2015] 13 - M in February of 2016. test vehicle operator permit.operator vehicle test insurance. & Out of State california-dmv-driving-autonomous-car-developers-off-the-road-out-of-state. application fee. manufacturer manufacturer obtains a renewable at one “Manufacturer’s year intervals Testing by submission of Permit,” a new application which and is December 16, 2015, California’s DMV released proposed regulations public operation of for AVs. C Y 37792-fiu_11-1 Sheet No. 124 Side A 04/28/2016 10:11:02 A 04/28/2016 124 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 124 Side B 04/28/2016 10:11:02 M K 161 C Y . 1143, AV AV EV 163 ENEFITS L. R However, However, [Vol. 11:221 11:221 [Vol. 1 (2009). 167 ASON AV B .M EO As new technology technology new As 164 ECHNOLOGIES , 12 G note 166, at 22–32; Jameson M. AXIMIZING AV T M supra Insurance companies are a a are companies Insurance , 166 168 Regarding cruise control, “there “there control, cruise Regarding ARLA K 170 377, 379 (2004) (stating that vehicle manufacturers manufacturers vehicle that (stating (2004) 379 377, EGULATION OF EGULATION R SSUES AND SSUES I ) 4/15/16 7:36 PM See also ALUES . 581, 605-09 (2012) (explaining that AVs will result in an .V EV Speed Bumps on the Road to Progress: How Product Liability ELETE FIU Law Review Law FIU D EGAL “Look Ma, No Hands!”: Wrinkles and Wrecks in the Age of UM OT .L.R N 162 IABILITY AND IABILITY O NG .&H (D E ., L AV L ECH note 66, at 1095. at 66, note EW DOCX .T note 165, at 595–97 (“General Motors ‘consistently contested the value of of value the contested ‘consistently Motors (“General 595–97 at 165, note note 165, at 581. 581. at 165, note CI supra , 46 N _4.15. Ford Motor Company and General Motors clashed over over clashed Motors General and Company Motor Ford ARLA ET AL ET ARLA supra supra AV liability issues will arise from users, consumers, consumers, users, from arise will issues liability AV K , 29 S 169 INAL ESOLVING ESOLVING 165 2013 Mich. Pub. Acts 231. Part III. _F at 19–21 (noting that the as human error is reduced, insurances costs are likely to be be to likely are costs insurances reduced, is error human as the that (noting 19–21 at § 665. IDHI Id. Id. See See Redefining Risks and Redistributing Responsibilities: Building Networks to Increase N Garza, Swanson, Garza, Robert Dan Spendlove, Note, Note, Spendlove, Dan Robert Note, Garza, P. Andrew V. R In the past, manufacturers have demonstrated reluctance to adopt AV technology will significantly improve vehicle safety, ACKOWSKI 166 167 168 169 170 161 162 163 164 165 ART P belts, tried to minimize their importance for the industry and attempted to discourage their adoption.’”) reduced as well). as reduced are “wary of accepting the new liabilities and costs that would accompany” the design, production, and technologies). safety revised or new of implementation Slows the Introduction of Beneficial Technology—An Airbag Example liability issues). liability increase in overall safety that will encourage manufacturers to adopt the technology despite initial 1143 (2005). 1143 insurance companies, and manufacturers. Wetmore, Automobile Safety Michigan, like Michigan, does Florida, not require an AV driver license endorsement permit.operator AV an or 242 vehicle is insured” in accordance with the Michigan insurance code. 13 - M efforts to implement seat belts in cars. technology has a great potential to improve our quality of life, but only the if law changes in a fashion technology as that it advances. However, promotes the U.S. the legal systems “acts wide to retard spread the use introduction of of the new and beneficial technology.” likely ally for the adoption of AV technology because the safety benefits of this technology will lower these companies’ bottom line. safety features that are now commonplace such as seat belts, cruise control, and airbags. Autonomous Vehicles “manufacturers have been concerns.” liability of because technologies historically reluctant to incorporate safety emerges and is adopted, there is a concern that liability issues will impede innovation. A. Manufacturer’s Criminal Liability Liability Criminal Manufacturer’s A. transportation and driver efficiency, and individual mobility. 37792-fiu_11-1 Sheet No. 124 Side B 04/28/2016 10:11:02 B 04/28/2016 124 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 125 Side A 04/28/2016 10:11:02 175 Educated Gas Educated Nevada’s Nevada’s 179 Part of the the of Part 181 174 243 However, automakers were were automakers However, 176 AV technology is likely to enjoy enjoy to likely is technology AV 173 178 Ultimately, automakers embraced air air embraced automakers Ultimately, 177 ) 4/15/16 7:36 PM ., Jan. 1954, at 166). at 1954, Jan. ., ELETE CI Autonomous Vehicle Liability—Application of Common Carrier D S note 31, at 1331–32. OT It is within the realm of the legislature to enact enact to legislature the of realm the within is It N Seat-Belt Injury Litigation: Defective Restraint Systems Can Result in O 180 supra . 5, 17 (2013). 17 5, . (D OPULAR Additionally, both vehicle safety experts and and experts safety vehicle both Additionally, EV note 66, at 1095. at 66, note note 5, at 283–84. , P note 168, at 390. note 168, at 390. note 66, at 1095, n.58. . 1988, at 46, 47–48) (quotation marks omitted)). marks (quotation 47–48) 46, at 1988, . DOCX 171 note 165, at 599 (footnote omitted) (quoting Frank Rowsome Jr., Rowsome Frank (quoting omitted) (footnote 599 at 165, note OV supra supra U. L. R supra supra supra ,N _4.15. Autonomous Vehicles and the Law in Florida in Law the and Vehicles Autonomous supra INAL RIAL Ultimately, “manufacturers have benefitted from the the from benefitted have “manufacturers Ultimately, _F at 391. at 1337. EATTLE , T Id. Id. 172 Swanson, (citing (1983) 35 29, U.S. 463 Co., Ins. Auto. Mut. Farm State v. Ass’n Mfrs. Vehicle Motor Wetmore, Goodrich, Wetmore, Marchant & Lindor, Comment, LeValley, Dylan Swanson, Garza, , 36 S 36 , Federal or state legislation that would limit or protect against liability An examination of the history of air bag technology offers useful Today, air bags “are installed in almost every vehicle due to changing ACKOWSKI 173 174 175 176 177 178 179 180 181 171 172 M K for AV manufacturers would become widely adopted. help this socially beneficial technology were concerns that cruise control technology may keep the throttle open and and open throttle the keep may technology control cruise that concerns were lead to wrecks.” push to adopt air bag technology injuries was from an vehicle collisions effort “by to replacing reduce a bags].” air [self-deploying artifact technical a with belts] seat using fatalities human and responsibility [of Pedal Keeps the Cops Away Cops the Keeps Pedal viewing air bags favorably increased. bag technology, in large part, because their potential liability for occupants in vehicles equipped with air bags was greatly reduced as the attitude of implementationtechnologies.” these of statutes or delegate agencies to create regulations that both apportion civil and liability, criminal, between AV manufacturers and users. the sameairbags. the fromas upwardacceptability public of the trend hesitant to adopt “frightened of airbag taking technology, involvement in an air bag strategy.” on primarily the because liability they that were would accompany their fatalities and an additional 100,000 vehicle collision injuries. lessons learned. The National Highway Transportation and Safety Agency, in 1977, estimated that air bags could prevent over 12,000 vehicle collision manufacturers manufacturers were “concerned that a driver ‘with literally nothing to do except steer and ruminate’ would be ‘more likely to drop winks.’” off for 40 fatal (quoting Edward M. Swartz et al., Injury Serious 2015] 13 - M public attitudes on vehicle improved safety technology and testing of airbags.” and air bag expectations as well as 42 Fed. Reg. 34,298 (July 5, 1977)). 5, (July 34,298 Reg. Fed. 42 Liability C Y 37792-fiu_11-1 Sheet No. 125 Side A 04/28/2016 10:11:02 A 04/28/2016 125 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 125 Side B 04/28/2016 10:11:02 M K C Y note note The The 187 supra [Vol. 11:221 11:221 [Vol. 184 The Public Readiness Readiness Public The note 31, at 1337). note 31, at 1338). 191 supra supra In 1986, the National Childhood Childhood National the 1986, In These federal laws were passed passed were laws federal These In the transportation industry, the the industry, transportation the In . 315, 323 (2010) (cited in Goodrich, 192 EV 190 188 Legislatures should be proactive in in proactive be should Legislatures .L.R ) 4/15/16 7:36 PM note 31, at 1335–36. 183 INN ELETE FIU Law Review Law FIU D supra Immunity for Vaccine Manufacturers: The Vaccine Act and note 31, at 1331 (citing National Childhood Vaccine Injury Act, Act, Injury Vaccine Childhood National (citing 1331 at 31, note note 31, at 1340. OT , 95 M N O There is historic precedent for new and emerging emerging and new for precedent historic is There supra supra (D 186 . § 482A.100 (2014). (2014). 482A.100 § . note 181, at 17. DOCX note 31, at 1338). TAT supra .S _4.15. legislatures should act to provide manufacturers with with manufacturers provide to act should legislatures supra Marchant & Lindor, & Marchant EV 185 INAL .R The statute requires the Nevada Department of Motor Vehicles Vehicles Motor of Department Nevada the requires statute The _F at 1340. at 1337. EV 182 Id. Id. Id. Pub. L. No. 103-298, §(a), 108 Stat. 1552 (1994) (codified at 49 U.S.C. § 40101 (2006) (2006) 40101 § U.S.C. 49 at (codified Marchant & Lindor, (1994) 1552 Stat. 108 §(a), Note, 42 U.S.C. § 2210 (2006) (cited in Marchant & Lindor, 103-298, No. L. Pub. Stensvad, B. Eva Lindor, & Marchant 42 U.S.C. § 329 (2006) (cited in Marchant & Lindor, N LeValley, see also see 189 In order to ensure that manufacturer liability does not become “a Limited liability protections were enacted for vaccine manufacturers in ACKOWSKI 185 186 187 188 189 190 191 192 182 183 184 barrier that blocks technology,” the introduction of this socially beneficial new Price-Anderson Nuclear Industries Indemnity Act was enacted in 1957 to limit liability to the nuclear industry. technologies to be protected by legislative efforts to limit liability. 244 AV statute delegates regulatory power to the Nevada Department of Motor Vehicles. 13 - M to create regulations insurance requirements, that and “such other govern requirements as determines the safety Department to standards, be testing necessary.” methods, and Emergency Preparedness Act of 2005 provides vaccine manufacturers with immunity from for liability harm that from resulting take vaccinations place during public health emergencies. Vaccine Vaccine Injury Act was enacted to limit liability for manufacturers of Preemption of Design Defect Claims (1986)). 300aa-1–300aa-34 §§ U.S.C. 42 the interest of greater public safety. (cited in Marchant, in (cited General Aviation Revitalization Act of 1994 small plane parts) provided manufacturers with immunity small from liability for plane eighteen (and years. primarily because the “public health benefit of vaccines is undeniable, yet they are so frequently the source of lawsuits that federal preemption had laws to be passed to protect their manufacturers.” establishing statutes or regulations that apportion question liability of liability involving AVs to from being brought “before a prevent court as a the direction.” statutory no with impression first of matter “liability protection, or preemption, to ensure AVs are not unduly impeded by liability concerns.” 5, at 284); at 5, 37792-fiu_11-1 Sheet No. 125 Side B 04/28/2016 10:11:02 B 04/28/2016 125 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 126 Side A 04/28/2016 10:11:02 , 198 note 31, at at 31, note 3 (2003), (2003), 3 supra The Impact of State 245 AV technology technology AV This suggestion suggestion This 199 195 .§921.002(1)(b) (2015) (“The primary primary (“The (2015) .§921.002(1)(b) TAT .S LA F This assumption is flawed because a a because flawed is assumption This ) 4/15/16 7:36 PM Accord 197 How Much Do We Really Know About Criminal Deterrence? ELETE D This argument assumes that the manufacturer manufacturer the that assumes argument This note 31, at 1338 (citing Fred J. Hellinger & William E. Encinosa, Encinosa, E. William & Hellinger J. Fred (citing 1338 at 31, note OT 196 N 194 O 765 (2010). supra (D State legislatures have enacted similar liability liability similar enacted have legislatures State note 181, at 20. at 181, note 193 DOCX supra _4.15. Autonomous Vehicles and the Law in Florida in Law the and Vehicles Autonomous RIMINOLOGY , Raymond Paternoster, INAL _F at 17–18 (“[W]e assume that a manufacturer of an autonomous vehicleAV is analogous analogous is vehicleAV autonomous an of manufacturer a that assume (“[W]e 17–18 at at 12. at 1215 (noting that common carriers owe “the highest duty of care” to their users). .L.&C Id. Id. Id. LeValley, See e.g. 2242 U.S.C. §§ 300aa-1–300aa-4 (2006) (cited in Marchant & Lindor, Lindor, & Marchant in (cited (2006) 300aa-1–300aa-4 §§ U.S.C. 2242 Lindor, & Marchant RIM The aims of the criminal liability regime are, in important part, to deter Some legal scholars have suggested that AV manufacturers should be The enormous safety benefits that AVs could provide for society C ACKOWSKI 195 196 197 198 199 193 194 M K children’s children’s vaccines. it will be up to the user to conduct routine maintenance on the vehicle. Due to this partitioning between manufacturing and maintaining the autonomous technology, the heightened duty of carje imposed on common carriers manufacturer of an AV, unlike the common carrier operator, will have little, little, have will operator, carrier common the unlike AV, an of manufacturer if any, control of the vehicle after it is sold. While a manufacturer will have control over the design and implementation of the autonomous technology, to an operator of the . . . vehicle [because] the manufacturer of the autonomous vehicleAV, like a carrier operations, will have technology.”). autonomous transportation—the exclusive control over the capabilities and limitations of the mode of represents a new paradigm in automotive safety, efficiency, and mobility. relies heavily on the idea that AVs are like common carriers because “they will engage in available transportation to the public, and the passenger’s services, safety is not entirely within the their services control of the passenger.” will be widely is the operator of the vehicle. purpose of sentencing is to punish the offender.”).the punish to is sentencing of purpose should not guide criminal liability for AVmanufacturers.criminalfor guide liability not should and punish conduct that society has deemed undesirable. 2015] 13 - M Laws Limiting Malpractice www.ahrq.gov/research/tortcaps/tortcaps.htm. Awards on the Geographic Distribution of Physicians U.S. Dep’t of Health & Hum. Servs., Agency for Healthcare Research and Quality, limitations in the area of tort reform, specifically for medical malpractice, largely “to ameliorate the promising,technologies.” liability concerns faced by vulnerable, but 100 J. 1338). AV technology while still giving persons that suffer harm a legal remedy as as remedy a legal harm suffer that persons giving still while AV technology regime. liability criminal the of aims the advancing as well held to the same liability standards as common carriers. demand that the legislature take proactive measures to ensure will thatnot hinder the and implantation liabilityadoption of this emerging technology. The model of liability should be protection looked to as legislators seek to maximize the benefits of this established new for vaccine manufactures C Y 37792-fiu_11-1 Sheet No. 126 Side A 04/28/2016 10:11:02 A 04/28/2016 126 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 126 Side B 04/28/2016 10:11:02 M K C Y [Vol. 11:221 11:221 [Vol. Even with the is well suited suited well is Florida should should Florida 205 201 204 note 3, at 1149–52). at 3, note and AV technology technology AV and note 4, at 1158–59. 202 § 1 cmt. a (1998). supra supra IABILITY L RODUCTS What remains is intent-based offenses offenses intent-based is remains What :P note 31, at 1321. at 31, note Douma & Palodichuk, & Douma 206 ) 4/15/16 7:36 PM ORTS T supra ELETE FIU Law Review Law FIU note 4, at 1158 (citing Beiker, D ee also ee OF ) OT N supra O HIRD (D (T note 25; s DOCX supra . § 316.86(2) (2015) (“The original manufacturer of a vehicle converted by a third _4.15. , Marchant & Lindor, & Marchant , TAT INAL ESTATEMENT .S These harms will probably include the type of incidents that that incidents of type the include probably will harms These Part III. Gomes, _F R LA 200 See, e.g. See, See See These same types of harm will no doubt occur after the transition phase, just to a lesser lesser a to just phase, transition the after occur doubt no will harm of types same These See F Douma & Palodichuk, For the reasons stated previously in this section, specifically to to specifically section, this in previously stated reasons the For “Is the ‘driver’ of an [AV] like the engineer of a train or pilot of an Florida law already provides some level of liability protection for The primary criminal liability issue that must be addressed is “that our Yes, society deserves a remedy for when autonomous technology fails, 203 ACKOWSKI 200 201 202 203 204 205 206 and producing a potentially dangerous product to the market. The solution can be found in the manufacturers. Simply put, existing products liability law historic precedent of limited liability for vaccine and manufacturers should be held to a reasonable standard when designing and offenses that require a person to “operate” with how the these offenses are applied and vehicle. analyzed for AVs is The evidenced by problem the term “self-driving car.” Is a person inside the vehicle a passenger or an operator? aircraft on ‘autopilot,’ or is she simply a passenger, with little or no control to handle civil liability issues for AV manufacturers, party into an autonomous vehicle shall not be liable in. . . any legal action brought against the original manufactured.”). originally as vehicle the in present was defect alleged the unless . . . manufacturer current limitations of autonomous technology, traffic offenses will be eliminated. almost all strict liability 246 This is an emerging technology, and as such there will likely be real world harms as the vehicles. automotive industry transitions to fully autonomous 13 - M is too importantmanufacturerstoo hold is to product. criminally their for liable manufactures. In Florida, the manufacturer of a traditional automobile is exempt from liability if a third party converts the traditional vehicle into an AV. B. Individual Criminal Liability Liability Criminal Individual B. current legal system assumes that in the the person driver’s seat is in control AVs.” with case the necessarily not is which vehicle, the of relegate manufacturerAVsrelegate of liability comportlaw.to withtort existing maximize maximize and enable the policy benefits from AVs, carry with them criminal liability, such as serious bodily harm However, and death. the overall benefit to society that this technology substantially will outweighs the need to deter or punish provide manufacturers under the criminalregime.liability extent. 37792-fiu_11-1 Sheet No. 126 Side B 04/28/2016 10:11:02 B 04/28/2016 126 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 127 Side A 04/28/2016 10:11:02 The The 210 Nobody Nobody 208 209 247 Exclusive: In Boost to Self-Driving Cars, U.S. Tells legislatures should recognize that the the that recognize should legislatures ) 4/15/16 7:36 PM 211 , REUTERS (Feb. 10, 2016, 1:14pm) (“NTHSA will interpret ELETE note 4, at 1163. note 4, at 1160. D OT 207 N supra supra O (D DOCX . § 319.145. § . TAT _4.15. Autonomous Vehicles and the Law in Florida in Law the and Vehicles Autonomous .S LA INAL F _F at 1163 (describing this concept as “an ‘I’m drunk, take me home’ button”). Id. See David Shepardson and Paul Lienert, Lienert, Paul and Douma & Palodichuk, Shepardson David Douma & Palodichuk, The most obvious legal issue from a criminal liability standpoint is The answer to that this a question person should inside be an AV while Laws that make driving under the influence a crime are challenged ACKOWSKI 207 208 209 210 211 M K of the vehicle’s behavior?” vehicle’s the of Google Computers Can as Drivers Qualify ‘driver’ in the context of Google’s described system], and not motor to any vehicle of the design vehicle occupants.”) as (quoting a reffering NHTSA letter original). the to in (alterations dated February the 4, 2016) [self-driving the “driver” and anyone inside the vehicle is a mere “occupant.” operating operating in autonomous mode is presumed to be a passenger. This is answer the to the operator/passenger question inside the because vehicle is although indeed controlling the the vehicle, by person giving such instructions as the destination, instructions are should carried be out. whether The the test person inside the the vehicle itself is vehicle is in operating the vehicle control in any meaningful of an AV is way. controlling software the that determining issue, The in on this weighed how NHTSA has those created by the following scenario. An intoxicated person gets in their AV. The vehicle begins to equipped drive with an alert the and disengage intoxicated system (required in person Florida). home. The AV is 2015] 13 - M would seriously argue that a passenger in a taxicab is operating the vehicle merely because that passenger told the driver where to go. In the case of AVs, the car itself is operating the vehicle and instructions, the person should inside, be issuing held to similar taxicab. a criminalof passenger liability standards as the head-on by AVs. To the average consumer, purchasing thought of an as AV purchasing might a be personal taxi. This same that person after a night may of drinking, their presume AV would be capable of “delivering the interaction.” further any homewithout person safely intoxicated person inside the vehicle is a passenger. To do otherwise would mean that instances of drunk driving are not as effectively reduced. this Additionally, if scenario were to hindered. mobilitystrongly promise increased wouldbe of also substitute being blind for being intoxicated, the vehicle is involved in an accident that harm. results in death The or serious bodily legal intoxication, the accident issue would have occurred. Because is “[t]he possibility of causation: removing drunk whether, drivers from the but benefits road [AVs] is for might one of provide,” the the most prominent person’s C Y 37792-fiu_11-1 Sheet No. 127 Side A 04/28/2016 10:11:02 A 04/28/2016 127 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 127 Side B 04/28/2016 10:11:02 M K 217 C Y The The 221 and a a and to allow allow to 215 216 [Vol. 11:221 11:221 [Vol. 218 § 16(2)(d)(2)). ODE .C DMIN .A Strict liability offenses lack lack offenses liability Strict EV 219 If an AV, while in autonomous autonomous in while AV, an If Yet issuing a ticket to the operator 220 222 The law in Florida also requires a system ) 4/15/16 7:36 PM 214 ELETE FIU Law Review Law FIU note 4, at 1161 (citing N D OT N supra O (D . § 316.1945 (2015). 316.1945 § . note 50, at 22. note 50, at 21. TAT DOCX . § 316.85 (2014). 316.85 § . (2015). 319.145(1)(c) § . (2015). 319.145(1)(c) § . (2015). 316 § . .S A legislative solution would be to recognize the crime of of crime the recognize to be would solution legislative A supra supra LA TAT TAT TAT TAT .§319.145(1)(a)(2015). _4.15. , City of Naperville v. Watson, 677 N.E. 2d 955 (Ill. 1997) (cited in Douma & 212 , F .S .S .S .S TAT note 4, at 1163). LA LA LA LA INAL 213 .S Miller, Miller, F F F F Miller, _F at 1163. LA supra See, e.g. Id. See See See See See e.g. See, See F Douma & Palodichuk, Noncriminal moving violations raise an interesting legal question, There is another DUI situation that legislatures should address The law in Florida is clear that some human is always the operator, ACKOWSKI 212 213 214 215 216 217 218 219 220 221 222 a mens rea element because they are not culpability concerned as they as are much with with deterrence. moral simply by having their keys in their pocket, sleeping in their vehicle, while intoxicated. “autonomous DUI” in these situations. situations This where could courts function have similarly found to people to be in control of a vehicle Palodichuk, operator is not morally blameworthy, but moral blame is not contemplated noncriminalby offenses. liability strict mode mode and without a physically present operator, for whatever reason, fails to obey a police officer directing traffic, why should the human operator be issued a ticket? Florida’s current AV legal regime would allow this human operator to be issued a ticket because that is the letter of the law. violation caused by the AV The majority of traffic offenses in Florida are strict liability, noncriminal traffic infractions. whether it is appropriate to punish, by issuance of a fine, for a traffic Florida legislators should, instead, borrow from Nevada’s laws and require that “[i]f the driver is not present or is unable to safely take control of stop.” comea to to itself cause safely must vehicle the vehicle, the that alerts the operator if the autonomous technology fails 248 regarding AVs equipped with alert intoxicated person, due to and their normal faculties being impaired, disengages disengage systems. What if autonomous operation and the result isof the an vehicle, which results in death or serious bodily harm? triggering Technology could this provide for breathalyzers.” disengage a option “method of [through] the inclusion of in-car 13 - M even when the vehicle is empty.is vehicle the when even disengagement system that is “easily accessible to the operator” the person to take control of the vehicle in the event of a malfunction. 37792-fiu_11-1 Sheet No. 127 Side B 04/28/2016 10:11:02 B 04/28/2016 127 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 128 Side A 04/28/2016 10:11:02 State State 223 249 ) 4/15/16 7:36 PM ELETE note 4, at 1165. D OT The legislature should be proactive and place place and proactive be should legislature The N supra O 224 (D . § 812.133 (1993). 812.133 § . TAT DOCX .S LA _4.15. Autonomous Vehicles and the Law in Florida in Law the and Vehicles Autonomous ,F INAL _F See, e.g. See, Douma & Palodichuk, If a third party were to take control of an AV through hacking, a host Imagine being issued a ticket every time your smartphone went out of AVs could potentially be used to transport contraband such as drugs One issue that needs to be resolved is raised in the following ACKOWSKI 223 224 M K is present in the vehicle exercising control of the vehicle, and the argument can be made that experience. and context on based traveling the operator should realize how fast the CrimesAVs Involving C. vehicle is of criminal issues are raised. If someone (regardless of whether the person is considered a passenger or operator) is inside the vehicle at the timethird party the takes control, is this theft, kidnapping, carjacking, or something else entirely? Existing statutes may adequately address this issue. here does not further the aims of deterrence either. Here, the operator has no has operator the Here, aimsthe further not either. does deterrence here of control of how the AV functions once it is engaged, and no amount of fines willtickets this. or change service. Would these tickets somehow make you stay in service? Of course not, and the same concept is at play with AVs. If anyone should be liable in this instance it is the manufacturer. This is similar to when a in being that in speedometer The a resulting ticket. difference the speeding malfunctions case of the faulty speedometer, an actual person with a valid driver license proximate cause of the death. death. the proximateof cause because: (1) they obey all traffic laws resulting stopped by in law enforcement; a and (2) lower they can be risk operated without of anyone being in the vehicle so that if the vehicle is stopped and the contraband is found, the owner of the contraband may escape capture. Given the possible use of causes death or seriously bodily harm.bodily seriously or death causes hypothetical. An AV has an alert and disengage system. The law states that a person with access to this system is vehicle. considered The vehicle is to hacked, and be is now controlled in by a control third party. of The the alert and disengage system still functions. The AV, under the control of the hacker, kills a pedestrian. This death virtual carjacking would victim utilized the disengage have system. The issue that must been avoided had the be addressed by the legislature is whether “the ultimate safe responsibility operation for of the . . . vehicle remain[s] with the person with the ability to [use the disengage].” criminal liability on the hacker because the hacker’s illicit actions are the legislatures should enact new (or situation amend in which existing) an AV is statutes hacked, and then to involved in address an accident that a 2015] 13 - M C Y 37792-fiu_11-1 Sheet No. 128 Side A 04/28/2016 10:11:02 A 04/28/2016 128 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 128 Side B 04/28/2016 10:11:02 , M K C Y The The 227 Deceptive Drug [Vol. 11:221 11:221 [Vol. note 17, at 16). Autonomous Vehicle Report supra , EHICLES V 231 OTOR an extension of data collection collection data of extension an There are numerous Fourth Fourth numerous are There M 226 230 ) 4/15/16 7:36 PM AFETY AND note 17, at 3. at 17, note S . 1, 6 (2002) (cited by Roseman, by (cited (2002) 6 1, . ELETE FIU Law Review Law FIU D EV OT Although the Supreme Court has stated that a a that stated has Court Supreme the Although supra N L. R O 228 IGHWAY (D H DAHO OF OF . . amend. IV. The amendment states: amendment The IV. amend. . DOCX T ’ Roseman, , 39 I 39 , EP ONST _4.15. , Rakas v. Illinois, 439 U.S. 128, 153–54, 154 n.22 (1978) (Powell, J., concurring); , United States v. Jones, 132 S. Ct. 945 (2012) (holding that the attachment of a GPS .D the Court has also stated that “people are not shorn of all all of shorn not are “people that stated also has Court the LA INAL 229 F Wolf v. Colorado, 338 U.S. 25 (1949) (incorporating the right against unreasonable unreasonable against right the (incorporating (1949) 25 U.S. 338 Colorado, v. Wolf _F U.S. C This type of data capturing system could be accessed by law law by accessed be could system capturing data of type This See See, e.g. See See, e.g. See generally See Delaware v. Prouse, 440 U.S. 648, 662–63 (1979). See The right of the people to be secure in unreasonable searches their and persons, seizures, houses, shall not papers, be and violated, effects, and no against Warrants upon probable shall cause, supported by issue, Oath or affirmation, but and particularly describing the place seized. be to things or persons the and searched, be to 225 The Fourth Amendment to the United States Constitution protects ACKOWSKI 228 229 230 231 225 226 227 Fourth Amendment has been incorporated against Fourteenth the Amendment. states through the person’s reasonable expectation of privacy is greater in a home than in an automobile, search and seizure); Aguilar requirements against the v. states); Ker v. California, 374 Texas, U.S. 23 (1963) (incorporating 378 the standards for U.S. was seizure or states). search the warrantless against a “unreasonable” whether determining 108 (1964) (incorporating the various warrant The Fourth Amendment “has evolved into an important part of every citizen’s procedural rights against government intrusion into personal affairs.” Checkpoints Daniel and R. Individual Dinger Suspicion: & Can John Law S. Enforcement Conviction? Trafficking Really Dinger, Deceive Its Way into a Drug 250 AVs as drug mules or otherwise transporting contraband, should AVs have some type of “black box” style data recorder? Nevada requires a black box type system in AVs that captures thirty seconds of data before occurs. a collision 13 - M sidewalks into their automobiles.” enforcement investigate, without resorting to data present. physically anyone without but contraband with laden snooping, AVs found AVs of Searches D. individuals from unreasonable intrusion by the federal government. Fourth Amendment protection when they step from their homes onto public sidewalks. Nor are they shorn of those interests when they step from the requirement beyond collision and safety reporting seems likely to give rise to Fourth Amendment issues. A better policy would be to have law enforcement, subject to a traditional search analysis, even when the AV has the recent not legal been issues in surrounding a the collision. use In light of of GPS tracking devices on vehicles, #13–008, at 4 (2014). 4 at #13–008, tracking device to a vehicle and subsequent use Amendment). Fourth the within of that device to monitor the vehicle, was a search Amendment issues raised by the use of AVs. of use the Amendmentby raised issues United States v. Knotts, 460 U.S. 276, 281 (1983). 281 276, U.S. 460 Knotts, v. States United 37792-fiu_11-1 Sheet No. 128 Side B 04/28/2016 10:11:02 B 04/28/2016 128 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 129 Side A 04/28/2016 10:11:02 I I :A 239 EIZURE S , 439 U.S. at Once an an Once Rakas 235 251 EARCH AND ,S AVE F A Not all interactions between between interactions all Not R. L This definition of “operator” “operator” of definition This 233 240 or when the person has an an has person the when or AYNE 232 W ) 4/15/16 7:36 PM , 440 U.S. 648, 653 (1979) (“[S]topping an automobile and ELETE ee generally note 230, at 653 (“[S]topping an automobile and detaining its its detaining and automobile an (“[S]topping 653 at 230, note (4th ed. 2004). D or establish probable cause in order to conduct conduct to order in cause probable establish or OT Prouse 237 Setting aside the issue of how law enforcement enforcement law how of issue the aside Setting N supra O 238 (D MENDMENT A DOCX , 551 U.S. at 254 (“A person is seized by the police and thus entitled to , 440 U.S., . § 316.85(2) (2015). 316.85(2) § . _4.15. Autonomous Vehicles and the Law in Florida in Law the and Vehicles Autonomous However, it is well settled that the Fourth Amendment is is Amendment Fourth the that settled well is it However, , Chambers v. Maroney, 399 U.S. 42, 52 (1975). 52 42, U.S. 399 Maroney, v. Chambers , (1990). 181 177, U.S. 497 Rodriguez, v. Illinois , (2000). 37 32, U.S. 531 Edmond, v. Indianapolis of City , OURTH TAT F 234 INAL .S Katz v. United States, 389 U.S. 347, 361 (Harlan, J., concurring) (outlining the two two the (outlining concurring) J., (Harlan, 361 347, U.S. 389 States, United v. Katz Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). _F obtain consent, obtain LA See Brendlin See See Prouse See, e.g. See, e.g. See, e.g. See, See For a thoughtful discussion of establishing reasonable suspicion to stop an AV, see Roseman, 236 F Generally, Generally, a person has standing to bring a Fourth Amendment In Florida, the operator of an AV is the person that “causes the ACKOWSKI note 17, at 33–39, 41. 235 236 237 238 239 240 232 233 234 M K REATISE ON THE ON REATISE 148 (finding no standing to challenge a search under “mere the passenger” Fourth Amendment in when an defendant was automobile); a s challenge challenge when the person is seized will will focus on the procedural issues stop. lawful a to subsequent presented when an AV is searched vehicle’s autonomous technology to person engage, is physically present in the vehicle.” regardless of whether the detaining its occupants constitutes a . . . ‘seizure’ even though the purpose of the stop is limited and the (1975)). 878 873, U.S. 422 Brignoni-Ponce, v. States United (citing brief.” quite detention resulting a search of the vehicle. challenge the government’s action under the Fourth Amendment when the officer, ‘by means of physical force or show of authority,’ terminates or Bostick, 501 U.S. restrains 429, 434 (1991)); his freedom of movement.” (quoting Florida v. supra prongs of Fourth Amendment privacy: (1) that a person must have an that expectation expectation must be “one of that society is prepared privacy; to recognize as ‘reasonable’”); and (2) stops an AV (which dutifully obeys all traffic regulations and laws), becomes unclear. I will address the following scenarios: (1) an AV with a physically present operator; (2) an AV without anyone physically present; operator. the not is passenger that a with AV an (3) and leads to legally unusual standing and to challenge unique a situations search physically of pertaining an to present AV. who If in the has regarding operator the of standing an vehicle, AV to is However, in then Florida, because the challenge operator of an AV need not be physically the a traditional search present, the jurisprudence of issue of an who has automobile standing to challenge applies. a search of an AV automobile has been stopped by law enforcement, an officer must warrant, have a T 2015] 13 - M expectation expectation of privacy in the area searched. law enforcement and individuals are seizures or searches under the Fourth Amendment. implicated when law enforcement stops an automobile. occupant constituted a ‘seizure.’”); Brendlin v. California, 551 U.S. 249, 263 Amendment). Fourth the under stop the challenge to entitled thus and seized was passenger automobile (2007) (holding that an C Y 37792-fiu_11-1 Sheet No. 129 Side A 04/28/2016 10:11:02 A 04/28/2016 129 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 129 Side B 04/28/2016 10:11:02 M K C Y This This 242 244 [Vol. 11:221 11:221 [Vol. ) 4/15/16 7:36 PM traditional search analysis is substantially substantially is analysis search traditional ELETE FIU Law Review Law FIU 241 D OT N O 243 note 17, at 44–46. (D note 17, at 41. DOCX supra supra _4.15. INAL Bond v. United States, 529 U.S. 334, 338–39 (2000) (holding that a person has a a has person a that (holding (2000) 338–39 334, U.S. 529 States, United v. Bond Roseman, _F See See Although an AV obeys all traffic laws and regulations flawlessly, in Florida a police officer officer police a Florida in flawlessly, regulations and laws traffic all obeys AV an Although Roseman, . § 316.610(1) (2015). 316.610(1) § . When When an AV without anyone physically present is searched In the first scenario the AV’s operator is physically present and a The final scenario, in which the person inside the AV is not the TAT ACKOWSKI 241 242 243 244 .S LA may stop a vehicle for a safety inspection “upon reasonable cause to believe that a F vehicle is unsafe.” this scenario. Law enforcement will obtain operator, a or establish warrant, probable consent cause. The from operator the will search. the challenge have standing to subsequent to a lawful stop, 252 search occurs subsequent to a lawful traffic stop. This scenario should not be treated any differently than a traditional search subsequent to traffic stop. In this scenario a law enforcement officer is able to talk face-to- a lawful face with the operator, ask routine questions, determine the operator’s final destination, run a search for outstanding warrants, and ask conduct a for search. Because the consent operator is physically to present and able to act in every as a traditional driver at this point (when the AV is no longer being driven), there is no reason to deviate from the traditional search analysis in 13 - M unaltered. In this scenario a law enforcement officer cannot speak to the AV AV the to speak enforcementlaw a scenario cannot this officer In unaltered. operator to obtain consent. It has been suggested that implied consent laws should be enacted for AVs without a physically present operator. final destination. Also, an officer may be able to obtain search. the to authorizedconsent is to passenger the if passenger, consent from the operator, is the most interesting. The search analysis is almost the same as when the operator is present in the officer would utilize the passenger’s demeanor and statements regarding the AV, except that a law enforcement reasonable expectation of privacy in a piece of luggage on a bus traveling long distances). distances). long traveling bus a on luggage of piece a in privacy of expectation reasonable enforcement and the operator, the search analysis is unchanged. Essentially, the AV without a physically present operator will be treated like a parked car with retained mobility. challenge In the this search scenario, is operator the would also have standing to challenge based issue a search subsequent to on a of lawful traditional standing stop even search when to not physically present analysis. because he or The she has a reasonable expectation of privacy, just like he or she would bus. public a on luggage have in a parked car or lack of face-to-face dialogue also creates a hurdle in establishing probable cause because the her or his where operator the demeanorask operator’s or the of observations law enforcement office final cannot destination utilize is. his Aside or from this her lack of interaction between law 37792-fiu_11-1 Sheet No. 129 Side B 04/28/2016 10:11:02 B 04/28/2016 129 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 130 Side A 04/28/2016 10:11:02 , the what’s the the what’s However, if a a if However, 250 253 247 Rakas v. Illinois 248 . § 316.193 (11) (2015). (11) 316.193 § . TAT .S LA However, in in However, ) 4/15/16 7:36 PM 245 ELETE D OT . § 316 (2015). 316 § . N This would allow administrative flexibility to to flexibility administrative allow would This O TAT 249 (D .S LA DOCX F People v. Cacioppo, 479 N.Y.S. 2d 264, 265–66 (App. Div. 2d Dep’t 1984) 1984) Dep’t 2d Div. (App. 265–66 264, 2d N.Y.S. 479 Cacioppo, v. People _4.15. Autonomous Vehicles and the Law in Florida in Law the and Vehicles Autonomous , United States v. Miller, 821 F.2d 546, 548–49 (11th Cir. 1987) (A defendant who INAL It is unlikely that a court will find that a passenger in an AV AV an in passenger a that find will court a that unlikely is It But see Rakas v. Illinois, 439 U.S. 128, 130 (1978). _F at 148. at 163 (White, J., dissenting). 246 See, e.g. See Id. Id. generally See This language is a slight alteration of F The operator of the AV would likely have standing to challenge a Florida should follow Nevada’s lead and amend the AV statute to ACKOWSKI 246 247 248 249 250 245 M K search subsequent to a However, lawful the issue of stop, whether the for passenger has standing the to more challenge reasons is complex. Courts noted do previously. not require standing ownership of to a challenge vehicle to a assert search. maximize maximize the benefits of AVs. Specifically, the delegation of powers regulatory to the Department of would Highway and allow Safety for and Motor adolescents, mobility that Vehicles licensed drivers would elderly, have. If the law and in Florida allows an disabled AV to persons operate on the public same roadways without anyone inside, Supreme Court held that automobile did not have standing to challenge the a search of the automobile defendant who because they did was not have a the reasonable expectation of privacy passenger in searched. the area in an 2015] 13 - M operated by someone else (such as a child or other person without a driver license) has reasonable expectation of privacy being in a the AV passenger itself in because determinative a of “car whether with [a passenger] the privacy in the particular areas of the had automobile searched.” permission a of legitimate its expectation owner of is not include language to the effect of “The Department of Highway Safety and Motor is Vehicles to directed for adopt rules providing the implementation and the use of AVs.” E. Nevada’s Legislation as a Modela as Legislation Nevada’s E. when he has “gained possession [of the area searched] from the owner or someone with the authority to grant possession”); United States v. Thomas, 447 F.3d 1191, 1199 (9th Cir. driver [of 2006) a (“An rental car] unauthorized may have standing to challenge a search if he or she has received permission to use the car.”). borrows a car from a friend has standing to assert an expectation of privacy.); United States v. Arango, 912 F.2d 441, 445-46 (10th Cir. 1990) (recognizing that a defendant has standing to challenge a search passenger who is not the owner of the AV is able “then to consent that to a same search, non-owner must have scope a of protected the privacy authority interest. sufficient The to privacy.” protected of contours the than broader grant a valid consent can hardly be (holding that the occasional use of a vehicle did not because the defendant was not give the actual owner, the doors were not rise locked at the time of the search, and to a reasonable expectation of privacy vehicle).the to keys of set own his have not did he C Y 37792-fiu_11-1 Sheet No. 130 Side A 04/28/2016 10:11:02 A 04/28/2016 130 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 130 Side B 04/28/2016 10:11:02 M K C Y [Vol. 11:221 11:221 [Vol. ONCLUSION ) 4/15/16 7:36 PM VI. C ELETE FIU Law Review Law FIU D ART OT P N O (D DOCX _4.15. INAL _F AV technology will improve the safety, efficiency, and mobility ACKOWSKI 254 inside? sit to person blind a harmallowing of 13 - M should reflect this concept. The Nevada statutes governing AVs should be used as model legislation. against This AVs, such new as virtual carjackings, regime and autonomous crimes, must and the use also of an address AV in crimes the furtherance of adapted a to address crime. these Existing crimes. By law creating a can new be legal regime readily for the AVs, goals of deterrence and punishment can from autonomousbenefits technology. be met while achieving the benefits of our existing automobile infrastructure. these improvements, a In new legal regime order must be created. This to new regime maximize needs to recognize that an operator passenger. This new regime must that more recognize often than not, an AV of an AV may actually is its be own a operator. mere Florida’s traffic laws and motor vehicle regulations 37792-fiu_11-1 Sheet No. 130 Side B 04/28/2016 10:11:02 B 04/28/2016 130 Side Sheet No. 37792-fiu_11-1