“Robot, take the wheel”: Driverless cars and road traffic legislation

I. Introduction

In light of the market launch of ChatGPT in late 2022, large language models (LLMs) and Generative AI have been under the spotlight. Robotics, a less publicised field of artificial intelligence, has also been making steady strides in the past decade.

Driverless cars represent a major application of robotics which will become a big part of the future of “smart” nations. In Singapore, autonomous vehicles have been touted as a Smart Transport initiative intended to meet “the ongoing challenge of designing more efficient, safe and reliable transportation systems for Singapore”^[1]. Given that “[t]he major factor in 94 percent of all fatal crashes is human error”[2], driverless cars herald the promise of reduced road fatalities and accidents.

Are our road traffic laws ready before driverless cars get the green light to be used on our roads? Particularly, how would/should the law look upon drunk car users of driverless cars? This article explores whether existing road traffic legislation are adequate to answer such questions, and if not, some possible reforms to be considered.

II.  What does it mean to “drive”?

What does it mean to “drive” under Singapore’s Road Traffic Act 1961[3] (the “Act”)? Notably, even before the advent of driverless cars, the term “drive” has already been subject to much argument in case law. Given the possible introduction of driverless cars powered by Automated Driving Systems (“ADS”) technology on our roads in future, a question may arise whether a person using the ADS feature is “driving” for purposes of the Act.

Under the Act, the term “driver” is defined to mean, amongst other things, “where a separate person acts as a steersman of a motor vehicle, includes that person as well as any other person engaged in the driving of the vehicle, and “drive” is to be construed accordingly”. In the English Court of Appeal case of R v Macdonagh[4], Lord Widgery CJ observed in the context of the UK Road Traffic Act 1972 that the “essence of driving is the use of the driver's controls in order to direct the movement, however that movement is produced”[5], and whether a person will be deemed to be “driving” would “often turn on the extent and degree to which the [person] was relying on the use of the driver’s controls”[6]. In McQuaid v Anderton[7], it was observed that the driver’s controls may include “steering, controlling and having the ability, as he should have, to brake when necessary”[8].

However, ADS technology at an advanced level does not require the use of a driver’s controls. Under the highest level (Level 5) of the framework for vehicle automation released by the U.S. National Highway Traffic Safety Administration^[9], “[ADS] is fully responsible for driving tasks while occupants act only as passengers and do not need to be engaged….you now the passenger, are not needed to maneuver the vehicle…A human driver is not needed to operate the vehicle.”[10]

Therefore, if a driver uses the ADS feature while operating his driverless car, an argument may be made that he or she is not “driving” within the meaning of the Act.

III.  Should criminal liability be imposed on drunk car users using the ADS feature?

Should criminal liability be imposed upon a drunk car user using the ADS feature?

It may be argued that if the ADS feature takes over all driving tasks, the mental state of the drunk car user (who is effectively a passenger) is no longer relevant and the basis of criminal liability disappears. Some may even hold the view that a decision by a drunk car user to use the ADS feature is a responsible one which reduces the chances of road accidents, and this decision should not be penalised under criminal law.

Conversely, one may argue that drunk car users deploying the ADS feature should be criminalised because they would not in their drunken state be capable of properly discharging their duty to take control of the driverless car if the ADS feature should fail or malfunction, thus posing a heightened risk to other road users. This is based on the view that human drivers should have the responsibility of monitoring and supervising driverless cars, and espouses the “human-over-the-loop” approach explicated upon in Singapore’s Model Artificial Intelligence Governance Framework (Second Edition)[11]. Under a “human-over-the-loop” approach,  “human oversight is involved to the extent that the human is in a monitoring or supervisory role, with the ability to take over control when the AI model encounters unexpected or undesirable events (such as model failure)”[12].

One may also consider the risk that a drunk car user may unwittingly in his or her drunken stupor “disengage” or affect the smooth operation of the ADS feature in the driverless car, thus negating any protections offered by the ADS feature.

As long as driverless cars allow users to disengage or affect the operation of the ADS feature, policymakers may find it more prudent to require users of the ADS feature be in a proper mental state, so as to mitigate the risks mentioned above. In turn, this means criminalising drunk car users of the ADS feature.

If there comes a day when ADS technology reaches such an advanced level which garners widespread societal trust and adoption, laws may even evolve to disallow car users to disengage or otherwise affect the ADS feature. In this scenario, a good case may be made out that drunk car users deploying the ADS feature should not be criminalised.

IV.  Section 68 of the Act

Under Singapore law, a drunk person can be liable for offences under the Act even if he or she was not driving the vehicle whilst inebriated. Section 68 of the Act[13] makes it an offence for a drunk person to be “in charge of a motor vehicle which is on a road or other public place but not driving the vehicle”. In Rangasamy Subramaniam v Public Prosecutor,[14] the Singapore High Court observed that s 68 of the Act “caters for the situation where a person is not apprehended while driving or attempting to drive a vehicle, but where he can be said to be in charge of the vehicle, such as in the present case where he had stopped it at the road shoulder and had fallen asleep in it.”

Does this mean that drunk car users of the ADS feature are “in charge of” the vehicle and can thus be charged for offences under s 68 of the Act? Or is legislative intervention needed to bring them within the ambit of s 68?

One school of thought is that the present wording of s 68 of the Act is capable of applying to drunk car users deploying the ADS feature. In a joint report published by the Law Commission of England and Wales and the Scottish Law Commission (“the UK Law Commission Joint Report”)[15], it was observed that legislative reform in the UK may not be needed in all cases as it was already an offence under UK road traffic legislation to be in charge of a vehicle while unfit to drive through drink or over the prescribed alcohol limit.[16]

In our view, legislative intervention may be needed to bring drunk car users of the ADS feature within the ambit of s 68 of the Act, due to possible arguments arising based on the exception under s 68(2) of the Act which provides:

“(2) For the purpose of subsection (1), a person is deemed not to have been in charge of a motor vehicle if the person proves –

(a) that at the material time the circumstances were such that there was no likelihood of the person’s driving the vehicle as long as he or she remained so unfit to drive or so long as the proportion of alcohol in his or her breath or blood remained in excess of the prescribed limit; and

(b) that between the person becoming so unfair to drive and the material time, or between the time when the proportion of alcohol in his or her breath or blood first exceed the prescribed limit and the material time, he or she had not driven the vehicle on a road or other public place.”

(emphasis in bold and underline)

Relying on s 68(2) of the Act, a drunk car user may attempt to argue that because of his or her use of the ADS feature which took over all driving tasks, there was “no likelihood” of him or her “driving” the driverless car, and he or she did not in fact “drive” on a road or other public place. In this regard, we have explained at Part II above how an argument may be made that a drunk car user is not “driving” within the meaning of the Act.

Legislative intervention may be needed to bring drunk car users of the ADS feature within the ambit of s 68 of the Act. One option could be for Parliament to introduce a separate concept of a “user-in-charge” into the Act, which would be similar to the following definition proposed in the UK Law Commission Joint Report:

“The concept of a user-in-charge applies where a vehicle is authorised as having a self-driving ADS feature for use with a user-in-charge. Under our recommendations, the user-in-charge would be defined as an individual who is in the vehicle and in position to operate the driving controls while such an ADS feature is engaged.”[17]

Such legislative intervention would make it abundantly clear that drunk car users deploying ADS feature are “users-in-charge” falling within the ambit of criminal liability under the Act.

V.  Conclusion

Driverless cars are likely to become part of our landscape in the not-so-distant future given the pace of progress for ADS technology. Should Singapore see driverless cars powered by ADS technology to be a part of our Smart Nation future, a review of our road traffic laws should be undertaken to deal with the use of ADS technology on our roads.

 

AUTHOR INFORMATION

Gary Low is a Director of the Dispute Resolution Practice and Co-Head of the Criminal Law Practice at Drew & Napier LLC.
Email: gary.low@drewnapier.com

Alex Goh is a Director of the Dispute Resolution Practice at Drew & Napier LLC.
Email: alex.goh@drewnapier.com

Victor David Lau is a Senior Associate of the Dispute Resolution Practice at Drew & Napier LLC.
Email: victordavid.lau@drewnapier.com

 

REFERENCES

^[1]    Smart Nation and Digital Government Office, ‘Transport in a Smart Nation’  <https://www.smartnation.gov.sg/initiatives/transport>

[2]    U.S. Department of Transportation and the National Highway Traffic Safety Administration, ‘Automated Driving Systems 2.0: A Vision for Safety’ <https://www.nhtsa.gov/sites/nhtsa.gov/files/documents/13069a-ads2.0_090617_v9a_tag.pdf>

[3]    2020 Rev. Ed.

[4]    [1974] 2 WLR 529.

[5]    Ibid at 531.

[6]    Ibid at 532.

[7]    [1980] 3 All ER 540.

[8]    Ibid at 543.

^[9]    U.S. Department of Transportation and the National Highway Traffic Safety Administration, ‘Automated Vehicles for Safety’ <https://www.nhtsa.gov/technology-innovation/automated-vehicles-safety> The six levels of the framework are: momentary driver assistance (Level 0), driver assistance (Level 1), additional assistance (level 2), conditional automation (Level 3), high automation (Level 4) and full automation (Level 5).

[10] Ibid.

[11] Infocomm Media Development Authority and Personal Data Protection Commission Singapore, ‘Model Artificial Intelligence Governance Framework Second Edition’ < https://www.pdpc.gov.sg/-/media/files/pdpc/pdf-files/resource-for-organisation/ai/sgmodelaigovframework2.pdf>

[12] Ibid at p 30.

[13] Section 68(1)-(2) of the Act read:

Being in charge of motor vehicle when under influence of drink or drugs

68.-(1) Any person who when in charge of a motor vehicle which is on a road or other public    place but not driving the vehicle –

(a) is unfit to drive in that he or she is under the influence of drink or of a drug or an intoxicating substance to such an extent as to be incapable of having proper control of a vehicle; or

(b) has so much alcohol in his or her body that the proportion of it in his or her breadth or blood exceeds the prescribed limit,

shall be guilty of an offence and shall be liable on conviction to a fine of not less than $500 and not more than $2,000 or to imprisonment for a term not exceeding 3 months and, in the case of a second or subsequent conviction, to a fine of not less than $1,000 and not more than $5,000 and to imprisonment for a term not exceeding 6 months.

(2) For the purpose of subsection (1), a person is deemed not to have been in charge of a motor vehicle if the person proves –

(a) that at the material time the circumstances were such that there was no likelihood of the person’s driving the vehicle as long as he or she remained so unfit to drive or so long as the proportion of alcohol in his or her breath or blood remained in excess of the prescribed limit; and

(b) that between the person becoming so unfair to drive and the material time, or between the time when the proportion of alcohol in his or her breath or blood first exceed the prescribed limit and the material time, he or she had not driven the vehicle on a road or other public place.”

[14] [2010] 1 SLR 719. For completeness, upon appeal in Public Prosecutor v Rangasamy Subramaniam [2010] SGCA 40, the District Judge’s sentence was restored in favour of the High Court’s sentencing decision. However, at paragraph 59 of Public Prosecutor v Rangasamy Subramaniam [2010] SGCA 40, the Singapore Court of Appeal opined that the observation of the High Court as reproduced in this article was “correct”.

[15] Law Commission of England and Wales and Scottish Law Commission, ‘Automated Vehicles: Joint Report’.

[16] Ibid at para 8.29 .

[17] Ibid at para 8.9.