JURIST Guest Columnist John Terwilleger, of Gunster, discusses the development and regulation of “driverless” vehicles and how federal and state governments are addressing this emerging technology…

Self-driving, or “autonomous” vehicles have advanced dramatically in recent years, to the point that they are now tested on public roads every day in the United States. Some consumer cars, such as Teslas equipped with autopilot technology [official website], are already capable of driving autonomously on the highway. Autonomous vehicles are making their way into the passenger transportation industry, with Uber testing a fleet of autonomous cars in downtown Pittsburgh [backgrounder]. Similarly, autonomous trucks are also beginning to appear, as Uber demonstrated when its autonomous tractor-trailer truck transported 50,000 beers 120 miles across Colorado.

Although the autonomous vehicles are speeding along, the law is struggling to keep up with this fast-developing technology. Only eight states (California, Florida, Louisiana, Michigan, Nevada, North Dakota, Tennessee and Utah) and the District of Columbia currently have statutes addressing autonomous vehicles. Additionally, the governors of Arizona and Massachusetts signed executive orders concerning autonomous vehicles. The National Highway Traffic Safety Administration (“NHTSA”) also recently issued guidance [text] that included a Model State Policy for autonomous vehicles. This comment will discuss current state laws that address autonomous vehicles, the NHTSA’s Model State Policy, and how the law will need to develop further to address emerging issues with autonomous vehicles.

A. Existing State Laws

Existing state statutes regarding autonomous vehicles fall into three general categories: (1) those permitting general use of autonomous vehicles, (2) those that permit the use of autonomous vehicles for testing purposes only, and (3) those that do not regulate the use of autonomous vehicles.

Florida and the District of Columbia have authorized the general use of autonomous vehicles. In 2016, Florida amended its autonomous vehicle statute, allowing any person with a valid driver’s license (the “Operator”) to operate an autonomous vehicle on Florida roads. Importantly, the statute does not require the Operator to physically be in the vehicle. Rather, the autonomous technology must have a mechanism to either allow the Operator to take control of the vehicle if the autonomous technology fails, or cause the vehicle to come to a complete stop. The District of Columbia took a slightly more restrictive approach, allowing autonomous vehicles on public roads if a licensed driver is seated in the driver’s seat and can manually take control over the vehicle at any time. With these statutes, Florida and the District of Columbia have taken the lead in permitting the use of autonomous vehicles for any legal purpose.

Other state laws on autonomous vehicles are more restrictive, permitting the use of autonomous vehicles only for testing purposes, or not explicitly permitting the use of autonomous vehicles at all. For example, Michigan and Nevada only permit autonomous vehicles to be used for testing purposes. Louisiana defines “autonomous technology,” but does not otherwise regulate autonomous vehicles. And North Dakota and Utah authorized studies [PDF] on how to best regulate autonomous vehicles. Finally, Tennessee, rather than authorizing the use of autonomous vehicles, merely barred local governments from prohibiting the use of autonomous vehicles.

Even in California, where autonomous Google cars have undergone thousands of hours of testing on public roads, autonomous vehicles are only allowed for testing purposes with a human seated in the vehicle at all times and only with a testing permit. Additionally, the California Code of Regulations excludes vehicles weighing more than 10,000 pounds, effectively prohibiting the testing of autonomous tractor-trailers. However, the California legislature recently took the significant step [PDF] in allowing permits for limited testing of autonomous vehicles without a human in the driver’s seat and without a steering wheel, gas pedal or brake pedal.

Three state governors have taken steps to promote autonomous vehicles in the absence of legislative action. Arizona’s governor issued an executive order instructing the Arizona Department of Transportation to establish [document] pilot programs to permit the testing of autonomous vehicles, with or without persons inside the vehicle. Massachusetts’s governor issued an executive order [document] establishing an autonomous vehicle working group whose purpose is to issue guidance for safe testing of autonomous vehicles in designated areas. And Virginia’s governor helped create the Virginia Automated Corridors [materials], a public-private partnership to encourage the growth of autonomous vehicles by designating portions of public roads for testing.

In states that have not yet passed legislation or regulations concerning autonomous vehicles, testing autonomous vehicles with a human in the driver’s seat may still be legal. This was the conclusion reached in South Carolina, when a company seeking to drive an autonomous vehicle through the state sought an attorney general opinion on the legality of a test-drive with a human driver at the steering wheel. The opinion explained that because “South Carolina law neither prohibits nor expressly authorizes the testing of autonomous motor vehicles on public roads in our State,” and because a licensed driver would be seated in the driver’s seat at all times, “we believe an autonomous motor vehicle would classify as a motor vehicle and its test driver would classify as a driver” under South Carolina law.

B. The NHTSA’s Model State Policy

The NHTSA’s recent Federal Automated Vehicles Policy included a Model State Policy, which will likely serve as a basis for many state autonomous vehicle statutes. The NHTSA envisions a system in which the states treat fully autonomous vehicles as the “driver” of the vehicle. However, the Model State Policy encourages states, for the current time, to only allow testing, and require an application and approval before companies desiring to test autonomous vehicles are permitted to begin testing. The policy recommends statutes that require autonomous vehicles to comply with general vehicle regulations and be driven, when not in autonomous mode, by licensed human drivers with special training regarding the autonomous vehicle’s capabilities. The policy also recommends a review of existing state laws and regulations to address gaps that will become relevant as autonomous vehicles become more common. The Model State Policy recommends reviewing law enforcement, emergency response and safety rules, and providing additional training for law enforcement. The policy also recognizes issues that will arise in insurance and tort liability, which will require states to allocate liability between the manufacturers of the vehicle, the owner of the vehicle and other persons who could be involved in an accident. Overall, the Model State Policy encourages states to begin addressing the many issues that will arise with increased use of autonomous vehicles but recommends that current use be limited to testing.

C. The Path Forward

Existing law regarding autonomous vehicles varies drastically. This means that, for the present time, cross-country autonomous vehicle trips will be legally challenging, and, at most, will only be allowed for testing purposes. Only Florida and the District of Columbia allow the use of autonomous vehicles for general purposes.

As the technology continues to advance, each state is faced with a choice: (1) permit autonomous vehicles for general purposes, (2) allow autonomous vehicles with significant restrictions, such as for testing purposes only, (3) prohibit the use of autonomous vehicles or (4) do nothing. States that do nothing will find themselves left out of much of the early use of autonomous vehicles but will still be faced with questions as to whether autonomous vehicles may legally be used in the state. States that prohibit the use of autonomous vehicles will encourage business built around autonomous vehicles to go to elsewhere until the state laws are preempted by the federal government as hampering interstate commerce (once autonomous vehicles become commonplace). States that choose to permit the use of autonomous vehicles for testing purposes will encourage some use, and will assist the developing autonomous vehicle industry in collecting the essential data necessary to operate fully autonomous vehicles on any road.

Those states that permit autonomous vehicles for general purposes will find themselves ahead of the pack, as companies that desire to use autonomous vehicles in the near future will have very limited choices as to where they can operate their business. Additionally, these states will encourage public use of existing autonomous technology, such as Tesla’s autopilot, on highways, which should increase highway safety. However, these states will also be faced with the potential dangers of distracted drivers forgetting to pay attention to the road and will have a higher likelihood of dealing with the first crashes involving autonomous vehicles, along with the numerous liability issues that will inevitably arise. Ultimately, states must choose whether they want to take on the risks associated with early use of autonomous vehicles to obtain the benefits of increased business and potentially increased safety on the roads. The State of Florida and the District of Columbia currently have taken this approach, and other states may soon follow.

John Terwilleger is an attorney at Gunster, Yoakley & Stewart in West Palm Beach, Florida who represents clients in the autonomous vehicle industry. In addition to his work related to autonomous vehicle, Mr. Terwilleger specializes in commercial litigation, including professional services and intellectual property disputes.

Suggested citation: John Terwilleger, Accelerating Progress: State Laws Governing Autonomous Vehicles, JURIST – Hotline, Dec. 29, 2016, http://jurist.org/hotline/2016/12/accelerating-progress-state-laws-governing-autonomous-vehicles.php.