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Infrastructure bill says anti–drunk driving technology must be built into new cars. But what that actually means is unclear.

November 15, 2021, 5:00 PM UTC

President Joe Biden is expected to sign his $1 trillion infrastructure package into law on Monday, and along with it a new requirement for automakers to help prevent drunk driving. 

The mandate, which falls under the $17 billion allotted to road safety programs, means that auto manufacturers will be required to install monitoring systems in new cars as early as 2026 that will stop intoxicated drivers.   

While Mothers Against Drunk Driving touts the new requirement as the “single most important legislation” passed in recent history and says it marks “the beginning of the end of drunk driving,” analysts and automakers are paying close attention to the rollout for another reason. 

As cars in the U.S. become more autonomous, it becomes less clear if the driver or the automaker is at fault in malfunctions or accidents. Drunk-driving prevention mechanisms mandated in the new infrastructure bill will be an early case study in personal and corporate safety liability: If a drunk driver is able to override a malfunctioning system, is the automaker also responsible?

The biggest concern for the auto industry isn’t the cost of updating cars with new technology, it’s whether the mandate transfers personal legal responsibility to Big Tech, Dan Hearsch, managing director in the automotive and industrial practice at AlixPartners, told Fortune

“This will be a big preview of what happens when self-driving vehicles become the norm,” he said. “When a crash occurs and someone is injured, who is at fault? The courts are going to have to decide, and they’re going to set a precedent for our autonomous future.” 

Insurers will also be monitoring the new law to determine if malfunctions will be covered by personal auto insurance. If someone is the victim of a drunk-driving accident that occurred with a malfunctioning detection system, they might ask the automaker to pay out instead of the drunk driver. 

On average, autonomous vehicles were involved in 9.1 crashes per million miles traveled, compared to 4.1 for conventional cars, and insurance companies are already reevaluating their policies on processing these claims. The American Property Casualty Insurance Association, a trade group, is currently lobbying Congress to release access to vehicle data in order to better understand whether a driver or a car was at fault.  

Some automakers have already announced that they take responsibility for fully autonomous functions. ​​Volvo announced way back in 2015 that it would accept all liability for autonomous cars, but the liability factor for partially autonomous vehicles remains unclear. 

The New York State Bar Association, the largest voluntary state bar association in the country, recently created a task force on autonomous vehicles and the law to examine these questions, and concluded that any changes to existing liability frameworks were “premature and could either over or under incentivize investments in automated driving safety.” 

The Biden mandate could quickly develop the law around autonomous vehicle technology. 

According to Hearsch, most automakers are already capable of creating the technology that will be required to prevent drunk driving.

“Some cars have autonomous driver assistance already, that means lane-keeping and automatic braking and driver monitoring; they can detect if drivers are drowsy or distracted. It’s pretty impairment agnostic, so it doesn’t matter if you’re drunk or high or texting or taking a nap, the same system will detect all of those misbehaviors,” he said. “The cost to auto manufacturers would be millions of dollars but that’s across millions of vehicles.” 

Congress’ new mandate is also very vague, and input from the auto industry will be considered as the Transportation Department assesses how to implement the rule and what form of technology best complies with it. 

“This is years away from any real implementation,” said Hearsch. The National Transportation Safety Board has three years to create and implement the rule, and then automakers must be given a sufficient amount of time to adapt and comply with it. 

About 10,000 people die every year in the U.S. from drunk-driving accidents, and implementing these safety precautions could easily cut that number down substantially.   

The Distilled Spirits Council of the United States, a trade group that worked alongside Mothers Against Drunk Driving to lobby for the mandate, celebrated the new mandate as a victory. 

“This is a paradigm shift and an opportunity to eliminate drunk driving and impaired driving as we know it,” said Chris Swonger, president and CEO of Distilled Spirits Council and Responsibility.org. He compared its passing to the rush of seat belt laws in the 1980s.  

There’s also an added bonus to the spirits industry. “The more progress that our industry contributes and the more progress society makes to eliminating drunk and impaired driving,” he said, the more likely it is that legislatures agree to eliminate Prohibition-era blue and shipping laws. “Modernizing the beverage marketplace and commitment to responsibility are complimentary,” he said.

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