Berks Barrister Summer 2018 - 13

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where a drunken man stumbles out of his local bar and into his
self-driving car only for it to kill a pedestrian during his trip back
to his home?
Your average DUI case today principally relies on two
factors: was the Defendant incapable of safe driving due to the
consumption of alcohol or some narcotic substance; and, if an
alcohol case, what was the level of his or her intoxication?vii For
an officer to have the probable cause to show a driver is incapable
of safe driving, police officers across the Commonwealth and the
United States give them a battery of tests known as the "Standard
Field Sobriety Tests" (SFSTs). SFSTs are a scientifically tested
way to assist the officer in determining one's mental faculties for the
purpose of the rigors of driving a vehicle down a busy street.viii However,
a more obvious indicator can be finding an already crashed car at
the scene and a driver smelling of alcohol.ix
The problem will become whether any of that will be relevant
when the driver shows the officer he is in a self-driving vehicle.
Was the crash that occurred due to the actions of a drunken
person hitting a switch on their car which put them in control of
the vehicle? Until we have reached a Jetsons level of mechanical
and scientific advancement, should the Commonwealth still
require that a "driver" engage in the responsibility of being sober
enough to drive whilst their self-driving vehicle taxis them home?
Barring a change by our legislature, the ability to charge and
convict people who choose to drive vehicles under the influence
will likely come down to how we interpret what it means for an
individual to be in "actual physical control." As the accident in
Tempe shows, even in self-driving vehicles, human beings will still
need to be attentive to the world around them for at least the near
future. While it is hard to argue that a person who is impaired will
be better served taking their self-driving car home than driving a
conventional vehicle, that is of little comfort to people whom are
personally injured, have their property damaged, or families who

lose a loved one because of a drunk "driver" who, if sober, could
have prevented such harm by taking over from the automated
driver.
However, we will have to wait until such a case involving an
automated vehicle finds its way through our courts. The current
opinions related to "actual physical control" relate to the issue of
whether the defendant was the actual driver and can be considered
"in control"x, not if the car controlled itself, making it legally
impossible for the defendant to be in control of the vehicle.
Prior to its repeal, California required all "testing" of selfdriving cars have a backup driver there to ensure nothing went
wrong.xi In addition to our current laws on DUI, passing
legislation to the effect of requiring a driver be of the same
sound mind and physical capability as drivers of regular cars and
apportioning them the same responsibility would benefit not only
the Commonwealth in determining such matters, but ensure safer
road traffic. From seatbelt laws, to helmet lawsxii and everything in
between, better regulations on driving help keep people alive and
safe.xiii While currently in Pennsylvania no laws are on the books
preventing or allowing autonomous vehicles to operate on
roadways, a Task Force currently sits to resolve this in Harrisburg.xiv
The current PennDOT policy director Roger Cohen notes
that the only thing a driverless car needs to operate in the
Commonwealth of Pennsylvania is a licensed driver sitting behind
its steering wheel.xv
While it is impossible to say for sure exactly what will happen
with DUI Law in Pennsylvania or around the United States, it
is clear that much of it will likely move out of the criminal and
into the civil context. For Assistant District Attorneys, this will
certainly lighten their caseloads, but for civil litigators this could
easily remain a fascinating and involved area. The higher burden
required in the criminal context in both burden of proof and mens
rea (i.e. the defendant's intent) could make DUIs in a criminal
Continued on page 14

vii 75 Pa.C.S.A. §3802

viii Hlastala, Michael et. Al., Statistical Evaluation of Standardized Field
Sobriety Tests; Journal of Forensic Science, May 2005, Vol. 50, No. 3, (2005).
ix Commonwealth v. Segida, 985 A.2d 871 (Pa. 2009).

x Commonwealth v. Crespo, 18 Pa. D. & C.5th 394 (Berks County, 2010).
xi Wakabayashi, Daisuke. "California Scraps Safety Driver Rules for SelfDriving Cars." The New York Times, The New York Times, 27 Feb. 2018.

xii It should be noted that Helmet requirements for adults over 21 has been
repealed in Pennsylvania, but in effect in many surrounding states. See The

Insurance Institute for Highway Safety, http://www.iihs.org/iihs/topics/laws/
helmetuse/mapmotorcyclehelmets.

xiii Bliss, Laura. "Traffic Fatalities Climb While Safety Laws Lag." CityLab,
24 Jan. 2018.

xiv "Autonomous Vehicle Policy Task Force." Pa.Gov, Pennsylvania Department of Transportation, www.penndot.gov/ProjectAndPrograms/ResearchandTesting/Pages/Autonomous-Vehicle-Task-Force.aspx.
xv Panaritis, Maria. "Pa. at Forefront of Self-Driving Car Movement." The
Philadelphia Inquirer, 12 Aug. 2016

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