Law Office of Matthew Konecky - May 2020

THE KONECKY

MAY 2020

JOURNAL

561.671.5995 | 954.272.6187 | www.matthewkoneckypa.com 110 SE 6th Street, Suite 1700, Fort Lauderdale, FL 33301 4440 PGA Blvd., Suite 204 Palm Beach Gardens, FL 33410 The Intersection of Technology and the Law

Self-Driving Cars and the Future of DUI Law

Technology is moving fast, and sometimes, laws can lag behind. Take self-driving cars for example: These types of cars are becoming more common, and one good example of this is Tesla’s cars. While you can drive around in a Tesla like any other car, you can buy an option for self-driving. This option lets you tell the car to take over. If you purchase this option, all you have to do once autopilot is enabled is sit in the driver’s seat while it navigates. It can accelerate, brake, and change lanes on its own. Other car companies are testing self-driving technologies right now, too. They aim to take human drivers out of the equation. But as this technology evolves, many people are curious about how these cars will impact society. Will they reduce accidents? Will they reduce auto insurance premiums? Will they reduce traffic jams? Or what about drinking and driving? Can you get a DUI if you’re in a self-driving car? That last question is particularly interesting to many. You’d think that if you weren’t driving, then you’d be off the hook. You could get in the car, tell it to take you home, and that would be the end of it. You could drink to your heart’s content. Florida law disagrees. Surprisingly, yes, you can be charged with a DUI if you drink and get into a self-driving car. The real question is this: How can this be? How can the law consider you to be driving under the influence if you aren’t driving at all?

(a) The person is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893, when affected to the extent that the person’s normal faculties are impaired.” There is a lot to unpack in that statute. What is “actual physical control?” According to some precedents, it is defined as the defendant being in physical control or having the capability to operate the vehicle regardless of whether they’re actually driving it. Here’s more: If you have a key fob in your pocket that has the ability to remotely start or stop a vehicle, and you’re under the influence, then you could be charged with a DUI. This technology is far less advanced than self-driving car technology, but this goes to show just how much technology is butting heads with the law. If you have the capability to start the car, then law enforcement officers believe you have the capability to get behind the wheel. But let’s come back to self-driving cars. So, you could be in a self- driving car and as long as you have the ability to operate that vehicle — and if you are under the influence — you could get a DUI. It doesn’t matter if the car is navigating itself perfectly. Take, for example, the Tesla Model S, which has a full self-driving capability. This option allows you to sit back while the car navigates on autopilot mode. For it to work, you have to be sitting behind the wheel and have your hands touch the wheel periodically. If you take your hands off the wheel for too long, the car will beep at you. You as the “driver” — the person — may not be doing the actual driving, but you have the capability to do so. This is why the law gets involved in these cases: The driver has some agency, and we all know that alcohol impairs judgment.

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To understand this, it’s important to take a look at the Florida statute 316.193 on DUIs, which states that:

“(1) A person is guilty of the offense of driving under the influence and is subject to punishment as provided in subsection (2) if the person is driving or in actual physical control of a vehicle within this state and:

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