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What’s Ahead For Autonomous Vehicle Test Driver Regs

Ed. note: This article was originally published in Law360 and may also be found on Dentons’ Driverless Commute blog

Autonomous vehicles are layered with complex, still-emerging technology. As a result, what makes driverless cars tick is a mystery for virtually the entire public. That dynamic itself shouldn’t be all that’s concerning: We routinely interact with technology of which we have little understanding. But when it comes to driving, a task humans have controlled for generations, the thought of surrendering the wheel to a code-based operating system is uniquely unsettling.Interior of driverless car

Empirically that should not be the case. Conservative estimates show that 94 percent of vehicle accidents are caused by human error. Autonomous vehicles, operating at peak performance and constantly communicating not only with traffic lights and stop signs but also with other vehicles and pedestrians, should significantly reduce, or even eliminate, car accidents, saving hundreds of thousands of lives and billions of dollars in health care and repair costs. Even if the technology fails to achieve our expectations, it should still outperform the average distraction-prone human driver.

Unfortunately, reaching that utopian mobility reality is not simple. The technology, at least what’s available today, is far from perfect. There are gaps, glitches and the occasional system failure. Given the dangers involved, automotive and technology companies have been utilizing contingency drivers to act as a fail-safe for the still-evolving vehicle technology. Employed and trained by companies, the backup drivers oversee and report on the test runs, while also standing ready to take control of the vehicle if necessary.

After a handful of crashes over the last 18 months, all aspects of autonomous technology have come under increased scrutiny by regulators and lawmakers. Now test-driver qualifications are under the microscope as well.

Before we dive into state-level test-driver qualifications as they relate to the very few accidents that have occurred on public roadways to date, it is important to note that many autonomous vehicles are not programmed to independently initiate emergency-braking maneuvers. That function is left to the test driver.

Too often, media reports on autonomous vehicle collisions are quick to describe the incidents as “setbacks” for the industry when in fact, upon further examination, the results of the internal and external investigations actually provide fodder for autonomous vehicle advocates. In many cases, they suggested that if the vehicle had been allowed to brake on its own when presented with the emergency response event, a significant number of the accidents could possibly have been avoided.

That being said, the technology does present an accounting of the situation, second by second, to a driver, who is too often not paying attention. Therefore, it’s important to ask ourselves what knowledge, skill and personality profile should be required to be an AV test driver. And once driverless vehicles become widely available, what will everyday drivers have to know to make the best use of the autonomous technology at their disposal?

In both Florida and Ohio, “operators,” a term that encompasses test drivers as well as remote controllers, are only required to have a valid state driver’s license. In other states, such as Pennsylvania and Arizona, test drivers must complete corporate training programs to gain the state’s blessing.

Of all the states that play host to significant autonomous vehicle testing, California has the most stringent requirements for test drivers. In addition to having a license for at least three years, the applicant cannot have more than one violation point against their license, cannot have been the at-fault driver in a collision that resulted in death or even injury, and cannot have been convicted of driving while under the influence in the preceding 10 years. In addition, the applicant must complete a company-administered training program.

Aside from requiring a valid license, company training programs are a common thread throughout state regulations. However, regardless of whether a state mandates training, all companies that are testing large numbers of vehicles have programs anyway. It’s always a good reminder to legal and policy professionals that industry best practices do not necessarily have to be codified.

But that should not diminish the importance of debating driver qualifications. Anyone overseeing nascent technology in life or death situations should be optimally trained and unquestionably competent. Does that mean the government needs to pass laws on the matter? Maybe, but maybe not.

The negative impact on a company of employing a test driver who fails to perform in a dire moment should be incentive enough for setting a very high bar when it comes to hiring and training. The industry is already battling the headwinds of a public that is highly skeptical of an AV getting them from point A to point B safely. Safety and caution are therefore top-of-mind for every company operating in this space.

And remember: At present, the number of autonomous vehicles on the road is relatively small, so the pressure on companies to avoid accidents is incredibly high, as a single incident can lead to a complete suspension of testing or the imposition of additional, heavy-handed regulation, slowing the sector’s ability to get to market on schedule.

Conversely, once these vehicles are leveraged in significant numbers, the corporate incentive structure will be significantly diminished. In that world, government may have to rethink the process for driver licensing. Especially given the fact that first-generation autonomous vehicles will operate autonomously only in specific situations and the crossover between technological and human control will require a new type of education.

If drivers do not fully understand what the technology can and cannot do, they will be unable to properly operate it. For example, within the next two or three years a significant portion of new cars will be able to operate completely autonomously under ideal highway conditions, but will remain unable to navigate complicated roadway scenarios. When the vehicle has to navigate around a double-parked food truck, through a construction zone or within range of law enforcement, a human may be required to take control.

Ensuring that the handoff works properly, efficiently and safely is paramount. Regulating that handoff is where government has a role. When a 16- or 17-year-old goes to take their driving test, they should know, in addition to the basics of lane changing, parallel parking and reverse driving, the essence of autonomous technology: how to recognize system failures, override procedures and a set of situations where the vehicle will prompt them to take control.

In sum, the conversations on operator qualifications should, and we believe will, transition to a discussion of consumer education. To ease the transition from an integrated, part-human/part-automated roadway to a fully autonomous mobility system, everyday drivers must understand the technology at their disposal. In what circumstances can it operate? What are the weak points? How do I understand vehicle commands? Each of those questions is vital to avoiding or mitigating unnecessary accidents. It’s time for state departments of transportation and departments of motor vehicles to study the new set of skills that will be required of drivers coming of age during the autonomous transition.



Eric J. Tanenblatt is a principal at Dentons and and the leader of the firm’s Global Public Policy and Regulation Practice. Crawford Schneider is an associate managing director in firm’s Public Policy and Regulation practice focusing on matters involving state and local government affairs.

Eric Tanenblatt headshot

Eric Tanenblatt, Global Chair, Public Policy & Regulation, Atlanta

Crawford Schneider headshot

Crawford Schneider, Associate Managing Director, Atlanta


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