Navigating Autonomous Vehicle Technology and the Law – North Carolina Criminal Law

In 2017, the General Assembly ratified S.L. 2017-166 regulating “fully autonomous vehicles” on state roadways. Shea wrote about that legislation here, noting “[i]f you expect your car to begin driving you to work later this fall, however, you’ll be disappointed. In this instance, legislation has outpaced the technology it regulates.” Seven years later, what’s changed? Car companies are increasingly marketing and selling vehicles as autonomous, self-driving, or with self-driving features. Autopilot (Tesla), Super Cruise (GM), BlueCruise (Ford), and Drive Pilot (Mercedes) are just a few examples. Has the vehicle industry caught up? And what are the emerging issues now that some of these vehicles are on the road?

The levels of autonomous driving. With any new marketing push and emerging technology, it’s important to understand the nature of what’s being sold and the relationship between the technology and current law. The Society of Automotive Engineers (SAE) categorizes all vehicles into one of six levels based on the amount of driving automation. The National Highway Traffic Safety Association (NHTSA) adopted the SAE categories in its Federal Automated Vehicles Policy published in 2016.

“Fully autonomous vehicles.” The 2017 legislation does not regulate each level of driving automation. Rather, it regulates “fully autonomous vehicles,” which are defined as “motor vehicle[s] equipped with an automated driving system that will not at any time require an occupant to perform any portion of the dynamic driving task when the automated driving system is engaged.” G.S. 20-400(3). “Automated Driving System” is defined as a system that can perform the entire driving task in either a limited or unlimited operational circumstance. G.S. 20-400(1). Since these vehicles don’t require driver input at any time, and operate under either limited or unlimited circumstances, fully autonomous vehicles as defined by the statute refer to SAE Level 4 and 5 vehicles.

Levels 4 and 5 on the road. To date, there are no personal vehicles available for purchase that have either Level 4 or 5 automation. But, starting a few years ago, the company Waymo became the first to offer driverless taxi service to the public. Currently in Pheonix, Los Angeles, and San Francisco in limited areas, individuals can use an app to book a ride in a driverless vehicle. Because there are geographic restrictions, including avoiding freeways in some markets, Waymo vehicles are properly categorized as Level 4 vehicles. The rollout has not been without issues though. After reports of accidents and other issues, in May of this year the National Highway Traffic Safety Association (NHTSA) launched a safety investigation into Waymo and other major robotaxi companies.

Local strides. Progress in the world of autonomous vehicles is not limited to the west coast. The North Carolina Transportation Center of Excellence on Connected and Autonomous Vehicle Technology (NC-CAV) is a collaboration between  North Carolina A&T State University (NCAT), North Carolina State University (NCSU), and the University of North Carolina at Charlotte (UNCC) funded by the NC Department of Transportation in 2020 to “investigate the adoption, utilization, and deployment” of autonomous vehicles and their impacts on transportation systems. In 2022, NCAT developed three Level 4 vehicles and tested them on a 2-mile test track that simulated real-life driving conditions. Just a year later, these shuttles were on public roads as part of a pilot program taking students, faculty, and community members between campus and downtown Greensboro. You can learn more and sign up for updates from NCAT here.

So Level 3 is available, right? Not quite. Apart from Mercedes, which provides Level 3 automation limited to low speed, stop-and-go traffic, in perfect weather, on pre-mapped roadways in and connecting San Francisco, Los Angeles, and Las Vegas, the highest level of automation available remains Level 2. Level 2 assists in both speed and steering simultaneously, but continues to require the driver’s full and uninterrupted attention during driving. In contrast, Level 3 vehicles enable the driver to safely turn their attention away from driving in the right conditions when the automation is activated. Understandably, in Level 2 vehicles, with feature names like “Full Self Driving” or “Super Cruise” it can be unclear just how much automation is taking place – but the important thing to remember is that for Levels 0, 1, and 2, the driver must operate the vehicle at all times, either by manual control or through constant supervision of the assistance provided.

The law today. Outside of G.S. 20-400 – 403, there is no legislation at this time regulating the operation of vehicles based on the level of automation. Which means that currently, Level 0, 1, and 2 (and theoretically, Level 3) vehicles are all subject to the same rules of the road, regardless of the drive mode activated or amount of assistance being provided to the driver.  For Levels 0, 1, and 2 this is consistent with the SAE’s requirement that the driver be present, attentive, and involved in operating the vehicle at all times. But before we see Level 3 vehicles in North Carolina, it’s possible we will see new legislation first. For example, both California and Nevada developed specific rules and permissions before allowing Mercedes’ Level 3 vehicles on the roadways. Considering Level 3 requires the driver to be prepared to assume operation of the vehicle at any time, it’s likely many of the rules that apply to Levels 0 – 2 will continue to be applied to Level 3, such as driver licensing and the requirement to remain non-impaired.

A false sense of self-driving. The lack of awareness of automation levels and their requirements can lead people to use a vehicle like it is capable of driving itself when that is not the case. While the “continuing evolution of automotive technology aims to deliver even greater safety benefits than earlier technologies,” the current state of driver assistance, marketing, and lack of information may be exacerbating instances of distracted driving. The Insurance Institute for Highway Safety (IIHS) reported in 2022 that across multiple vehicle manufacturers, between 12 and 53 percent of drivers said they were comfortable treating their vehicles as self-driving, and said they were more likely to engage in non-driving-related activities like eating and texting while using Level 1 or 2 driving assistance. Worryingly, according to the lead author of the study “[m]any of these drivers said they had experiences where they had to suddenly take over the driving because the automation did something unexpected, sometimes while they were doing something they were not supposed to.” Further, just last month the IIHS released a study finding over a period of four weeks, drivers quickly learned the limits set by partial automation systems and increasingly bypassed those limits to multi-task while driving. Just like S.L. 2017-166, consumers appear to be ahead of the technology. There’s no consensus at the moment whether the levels of driving assistance available today have made roadways more or less dangerous. But, it is clear that the safest thing to do is remain fully involved and attentive while driving, at all times as is required during Levels 0, 1, and 2 automation.

Safest – and most legal too. As discussed earlier, there is no distinction between Level 0, 1, 2, or 3 vehicles. This means they are regulated as a single category, covered by the terms “motor vehicle” and “vehicle” as defined in G.S. 20-4.01. Therefore, current vehicles with self-driving features in North Carolina remain subject to the same rules and regulations that apply to other vehicles on the roads. Perhaps very relevant to users of self-driving assistance, this includes G.S. 20-137.4A, making it a Class 2 misdemeanor to text or read emails while operating a vehicle in motion. And while there isn’t a specific prohibition on eating while driving, this also includes the Class 2 misdemeanor of reckless driving (G.S. 20-140), making it illegal for any person to drive a vehicle “carelessly and heedlessly in willful or wanton disregard of the rights or safety of others” or to drive a vehicle “without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property.” While it may not cover every non-driving-related activity, as it stands the language of G.S. 20-140 could be applied to considerable behavior – even during Level 2 or 3 assistance – that rises to the levels described in the statute.

Not caught up – but making progress. The 2017 legislation regulating Level 4 and 5 “fully autonomous vehicles” is still ahead of the curve, but thanks to the developments at NCAT and on the west coast, we are approaching it. While we’re on the way, it’s important to keep in mind that our vehicles are not taking over driving from us yet, and that our vehicles and the law continue to expect us to be fully attentive and involved drivers at all times. As a person who likes to drive, I don’t know if I will ever fully outsource the task. But letting the vehicle take over in mindless stop-and-go traffic? I could get on board.