By Mbilike M. Mwafulirwa
On May 19, 2019, the Oklahoma Governor signed S.B. 365, the Oklahoma Driving Automation System Uniformity Act. When that law goes into effect later this year, it will authorize the testing and operation of self-driving or autonomous cars. But as I outline below, even though the new law authorizes self-driving cars, it has left several important questions
unanswered.
I begin with those questions about self-driving cars the new law answers. The new law will supersede all laws that prohibit the testing and operation of motor vehicles with driving automation systems. The statute defines driving automation systems as “hardware and software . . . capable of performing part or the entire dynamic” driving tasks “on a sustained basis.” The new law will permit driving systems capable of level 1-5 driving automation (from basic driver assistance technology to sophisticated systems capable of operating a vehicle’s core functions and real-time operational and functional needs without human input or, as commonly known, fully autonomous vehicles). As a result, along with basic driver assistance technology, cars that can self steer, maneuver, accelerate, monitor the driving environment and respond with the appropriate response or signal will soon become a staple of Oklahoma roadways.
But the new law will also present important regulatory questions—i.e., who will regulate self-driving cars. To begin with, the new law contains a preemption clause for municipal and local government law. The important question is whether the Legislature intended complete or partial preemption. As noted, besides superseding all contrary state and municipal laws that prohibit self-driving cars, the new law states that “[o]nly the State of Oklahoma may enact a law
or take any other action to regulate the operation of motor vehicles equipped with driving automation systems in Oklahoma.” As worded, this provision raises fascinating preemption concerns. Did the Legislature intend to bar local governments and municipalities from also regulating in this area?
Two possible interpretations of that preemption clause come to mind. One possible interpretation is that the Legislature intended complete preemption. When read to the letter, arguably, the words in the preemption clause appear to leave no room for local laws. Another plausible interpretation is that the Legislature only intended to proscribe municipal and local efforts to ban or over-regulate self-driving cars. On that reading, the Legislature only intended to limit those laws that impede or frustrate the testing or operation of self-driving cars. Until we have judicial guidance on the scope of the preemption, that will remain an open issue.
What’s more, the new law does not answer the important criminal and civil liability questions posed by self-driving cars. As my recent public lecture at the University of Tulsa College of Law outlined, self-driving cars pose significant challenges for conventional criminal, traffic and civil laws. Those laws are enforced on the premise that a human driver drove a car
and broke either civil or criminal law. One of the main questions explored in the lecture was whether the current motor vehicle liability enforcement premise is still correct when the car itself, not a human, does the driving. I concluded that the premise is no longer entirely correct: the Legislature should consider amending the law.
Importantly here, that lecture also comprehensively covered those lingering civil and criminal liability issues, questions that the Oklahoma Driving Automation System Uniformity Act does not address. The lecture drew from and expanded on my two previous co-authored articles on the civil and criminal implications of operating self-driving cars in Oklahoma under
existing law. The common thread in those presentations was that self-driving cars pose complex liability and policy questions that would probably be better served by a comprehensive legislative solution.
With no comprehensive legislative solution to those questions, Oklahoma courts would have to decide the issues in individual cases. On the civil liability front, I have argued that courts could saddle legal responsibility on either the owner of the vehicle, the person in control of the car at the material time, or the manufacturer for harm caused by self-driving cars. As the self-
driving cars presentations make clear, plausible arguments can be advanced for imposing responsibility on either of those actors. But on the criminal and traffic law front, the answers are not straightforward. That is particularly true when the car is fully self-driving when a criminal or traffic infraction occurs. The courts would have to address difficult questions on causation and mens rea (the guilty mind state necessary to support a conviction). The public lecture provides
useful case law and guideposts on those issues.
Because self-driving cars pose complex liability and policy questions, the Legislature is probably better placed to provide comprehensive legislative solutions. As noted, unless the
Legislature passes supplementary legislation addressing these important liability questions, Oklahoma judges will have to address them in cases before them. See generally 12 O.S. § 2 (the
common law remains in force in aid of Oklahoma statutes).
Disclaimer: The materials and information on this blog are provided for informational purposes only, and may not reflect the law in your jurisdiction. The information contained on this blog and the specific post(s) you have reviewed or accessed should not be construed as legal advice, nor does the receipt and review of that information create an attorney-client relationship between the individual author(s), this blog, or the recipient of such information. Readers of this blog or any its posts are urged to seek appropriate legal counsel in their respective jurisdiction, state, or country, so that advice tailored to that person’s particular facts and circumstances might be given from those licensed legal professionals.
