Unanswered questions about future highway traffic law
Thursday, July 02, 2020 @ 11:57 AM | By Nathan Baker
Autonomous vehicles, sometimes called self-driving cars, are reaching the point of introduction into the market. Already hints of this are appearing in technologies such as automatic lane keeping and adaptive cruise control. The Society of Automotive Engineers (SAE) defines this as Level 1 and 2 automation technologies. These automations have the ability to greatly enhance the safety of driving and complement the human driver.
Unfortunately, there are downsides to this as well. With increased reliance on automated systems comes a decrease in the attention paid by drivers. While the end goal of autonomous vehicles is a vehicle where the driver is absent and can turn their attention to other pursuits, that will only occur at SAE Level 4 or 5.
In the meantime, the driver is expected to continue to pay attention to the road and changing conditions in front of them. People’s attention is kept when they are engaged but with technology limiting engagement, it is easy for attention to drift. It is in this dangerous lack of attention when harm can occur. In its accident report on a collision near Williston, Fla., the National Transportation Safety Board noted that “people are poor at monitoring automation and do not perform well on tasks requiring passive vigilance. Moreover, there is evidence that drivers lack a complete understanding of advanced automation systems, including their functionality and limitations.”
Current technology is designed to augment the driver and assist but not to take control. Yet people use terms like self-driving cars, when we are not at that point. Standards relating to driving including the operation and maintenance of vehicles will become more muddied as automation becomes more significant.
If a car running on adaptive cruise control rear-ends someone, is this more akin to following too closely by failing to pay enough attention, or is this more like an innocent driver whose brakes malfunctioned? Such questions can be answered in some ways by the common law but may also require further definition in statute. Just as texting and driving was not an issue 25 years ago, what will be at issue 25 years from now may not be what we expect.
The rise of ride-sharing apps like Uber and Lyft is also changing the landscape of traffic law. While certain requirements were imposed on taxi drivers, such requirements are not applied uniformly to such ride share services.
Professional drivers are held to a different standard and different licensing standards than average drivers but with an increase in ride shares, there has not been the same corresponding rise in regulating these drivers.
As automation enters into the picture, the driver aspect of ride sharing may disappear as well. Uber has developed a self-driving car. Who will be responsible where these technologies meet the increased regulatory sphere of commercial driving will be a question which may require legislation to deal with. As drivers transition to being mere occupants in some circumstances it may give rise to greater use of transportation by groups who previously could not drive.
However, it may also correspond with the diminution of driving ability amongst drivers. Fewer miles driven equals less experience. In the case of driving less experience equates with more danger.
It is up to traffic law to deal with this danger by regulating and controlling it in a way which still respects the importance of this activity which is “both legal and of social value” as was recognized in R. v. Beatty 2008 SCC 5.
Nathan Baker is a criminal defence lawyer in Peterborough, Ont., and is a sole practitioner at Nathan Baker Law. He takes special interest in impaired driving cases, especially those involving drug impaired driving and impaired boating. E-mail him at firstname.lastname@example.org.
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