Driverless cars are coming to a highway near you, and they have many people asking: should impaired driving charges become a thing of the past?

Australia's National Transport Commission thinks so.

In a recently released report, the NTC recommended an "exemption" from drinking and drug-related driving offences for those who are "driving" fully automated vehicles on public highways and roadways.

But hold your astonishment—the report is entirely premised on fully automated vehicles.

The recommendation operates on the assumption that there would be absolutely no possibility of a person actually being required to operate a fully dedicated automated vehicle. In this way, the NTC argues that using a fully automated vehicle is analogous to hiring a taxi driver, or having a sober designated driver take the wheel. It says that no legal distinction should be made between these methods of transportation.

The NTC's recommendations do not apply to semi-automated vehicle systems, like the Tesla Autopilot, the Audi Traffic Jam Pilot, or the Cadillac Super Cruise.

At this point, automated-vehicle systems are classified using a rating system with levels 1 through 5. The aforementioned systems are classified as advanced Level 2 autopilot systems, arguably pushing into Levels 3 and 4, while the Chrysler Imperial system—introduced nearly sixty years ago—is considered to be the first Level 1 system.

And while we've come a long way, we are still years away from seeing Level 5 fully automated vehicles flooding our roadways.

Arguably, the Tesla Autopilot is the closest we've come to a Level 5 operating system to date. While the technology appears to be in place for the development of a Level 5 street-legal operating system in the future, it simply isn't there yet.  Even this impressive operating system still requires an alert and attentive driver to be present in the driver's seat, which means we can't adopt the NTC's recommendations just yet…but we aren’t ruling anything out for the future.

As the law stands in Canada right now, a person can be charged with impaired driving if they are found either to be driving or in care or control of a motor vehicle while their ability to do is either impaired by a drug or alcohol or their blood-alcohol concentration exceeds 0.08 percent.

This means that a person can be charged, even if they aren’t technically driving. This fact may come as a surprise to many citizens, but the concept of care or control has long been established in our laws and is of central importance to this discussion.

Care or control, simply put, is a legal concept that covers acts of "driving" that fall short of actually driving. It was first established by the Supreme Court of Canada in the 1980s. A person can be said to be in “care or control” of a motor vehicle when they interact with the vehicle's fittings or equipment in a manner that could accidentally set the vehicle in motion, thereby unintentionally posing a risk to public safety.

This means that a person sleeping in the driver's seat of a motor vehicle could be charged with impaired driving in this country, regardless of whether they had been driving or not.

The purpose of this wide-ranging prohibition against drinking and driving is to serve the public interest. It is meant to deter intoxicated people from even sitting behind the wheel of a motor vehicle, no matter what the circumstance. Whether or not it has been effective in achieving this purpose is a debate for another day, but its presence is certainly well entrenched in our law and doesn’t seem to be going anywhere any time soon. 

After all, when we consider public policy goals, in conjunction with our current legal landscape and the technological limitations of vehicle-operating systems that exist today, it is difficult to make a case for the eradication of impaired driving offences when it comes to automated vehicles in Canada. 

It simply isn’t practical, safe, or consistent with the reality of our roadways.

As technology develops, though, so will the law—but for now, it’s best to stay sober while behind the wheel of your car, no matter how fancy it is.