AV Compliance is Still a State-by-State Slog — For Now - Frost Brown Todd

*This article was originally published in Law360’s Expert Analysis.

Are you ready for a vehicle without pedals or a steering wheel that drives autonomously? Fully autonomous vehicles, or self-driving cars, have hit the road in San Francisco, Phoenix and Los Angeles.[1]

According to Elon Musk of Tesla Inc., “We’ll move from supervised Full Self-Driving to unsupervised Full Self-Driving where you can fall asleep and wake up at your destination. It’s going to be a glorious future.”

Musk’s comments were made during an October presentation where he unveiled a self-driving “robotaxi” that he claimed will cost less than $30,000 and be in operation in 2025.

Despite continued excitement and buzz over autonomous vehicles, the industry has a problem with consumer trust following a number of high-profile crashes. In 2023, fear of autonomous vehicles rose from 55% to 68%, and trust in the technology dropped from 15% to 9%, according to surveys from the American Automobile Association.[2]

Importantly, legal structures have not yet advanced to cover true autonomous driving. While the National Highway Traffic Safety Administration has issued voluntary safety guidelines for autonomous vehicles, the federal government has not yet enacted legislation governing them, leaving investors and consumers uncertain about how to proceed.[3]

However, this may soon change. Tesla shares rose over 5% on Nov. 18, after Bloomberg reported that President-elect Donald Trump’s administration intends to prioritize enacting federal regulations for autonomous vehicles, to get more AVs on the road.[4] Musk’s close relationship with Trump may play a role in the administration’s policy choices.

While recent news provides some reason for AV companies to be hopeful, Bloomberg was unable to name its sources within the Trump team. And, of course, Trump will not be president until Jan. 20, and the new Congress will not be in place until Jan. 3.[5]

Until and unless new federal laws or regulations are enacted, automakers, consumers and investors are still operating in a state of uncertainty. In the absence of direction from the federal government, state governments have stepped in to regulate autonomous vehicles with a patchwork of laws that raise concerns about uniformity.

Kentucky Developments

Kentucky is one of the most recent states to pass legislation about AVs. In April of this year, the Kentucky Legislature overrode Gov. Andy Beshear’s veto to enact a bill that permits autonomous vehicles to operate on public roads subject to certain conditions.[6]

The Democratic governor and Republican lawmakers both cited safety concerns as their reason for opposing or supporting the bill.[7] Neither side has to look far to find evidence for their positions.

On the one hand, according to NHTSA, AVs have the potential to be safer than human drivers, as they cannot drive while drunk, drowsy or distracted.[8] On the other hand, the technology that would give autonomous vehicles that level of safety will not be implemented until after 2025, and human drivers are currently still better at avoiding fatal accidents than AVs.[9]

Beyond reducing car crashes involving autonomous vehicles, Kentucky lawmakers are hoping to use AVs to increase road safety all around.

In a meeting of the Artificial Intelligence Task Force of the Kentucky Legislature on Oct. 8, Kentucky Transportation Cabinet Deputy State Highway Engineer Jason Siwula and state Sen. Stephen Meredith discussed Kentucky’s efforts to use data from AI embedded in autonomous vehicles to assist in road paving, striping and signage to help prevent collisions, particularly in rural areas.[10]

Using AI collaboratively with autonomous vehicles to collect and analyze such data would save significant time, effort and taxpayer dollars.[11]

A Patchwork of State Laws

As of last month, 35 states had enacted laws that establish regulations for autonomous vehicles, and no state has banned AVs. The patchwork of laws fall into these general categories:

Laws permitting the operation of autonomous vehicles on public roads;
Laws allowing the testing of autonomous vehicles on public roads;
Laws on commercial autonomous vehicles; and
Laws creating taskforces and requiring research reporting on autonomous vehicles.

Below, we will examine this patchwork of laws in a systematic way.

Statutes Permitting the Operation of AVs on Public Roads

Most states that expressly permit autonomous vehicles to operate on public roadways have similar statutory requirements. The three most popular requirements are:

The vehicle must be capable of complying with all state traffic and safety laws;
The vehicle must be able to reach a minimal risk condition, meaning stopping or reaching some other safe state, if there is a system failure; and
The manufacturer must have certified that the vehicle met federal motor vehicle safety standards at the time of its manufacture.

Certain states also exempt autonomous vehicles from the vehicle equipment requirements that are meant to support operation by a human driver. This paves the way for companies to roll out autonomous vehicles without pedals or a steering wheel.

The table below details each state’s requirements. The statutes referred to in the chart can be accessed in the Autonomous Vehicles Legislation Database published by the National Conference of State Legislatures.[12]

Requirements to Operate Autonomous Vehicles by State

Statutory Requirements	AVs May Operate	AVs May Operate for Testing Only
Must apply and be granted a permit/approval/certificate	NH, PA	CA, ME, NY, VT, WA
Autonomous vehicle is capable of complying with all traffic and safety laws of the state	AL, AZ, CO, FL, GA, IA, KS, KY, LA*, MS, NE, NV, NH, NC, ND, OK, PA, SD, TN, TX, UT, WV	AK, NM, VT
If a failure of the automated driving system occurs which renders the system unable to perform the entire dynamic driving task, the autonomous vehicle can achieve a minimal risk condition.	AL, AZ, FL, GA, IA, KS, KY, LA*, MS, NE, NV, NH, NC, ND, OK, PA, SD, TN, UT, WV	AK, MI
When required by law, the vehicle bears the manufacturer’s certification label indicating that it has been certified to be in compliance with all Federal Motor Vehicle Safety Standards	AL, AZ, FL, GA, IA, KS, KY, LA*, MS, NV, NH, NC, OK, PA, SD, TN, TX, UT, WV	NM, NY, VT
Must submit law enforcement interaction plan that describes how to communicate with a fleet support specialist, how to safely remove the vehicle from the roadway, how to recognize whether the vehicle is in autonomous mode, and any additional information necessary	AZ, KS, KY, OK, TN, WV
AV can issue a request to intervene to human driver if system is unable perform the entire dynamic driving task	FL, KY, MS, NE, NV, OK, SD, WV	MI
AV must be covered by an insurance policy of $1,000,000	AL, FL, KY, NV**, OK, PA
Autonomous vehicle must be covered by an insurance policy of $2,000,000	AL, LA
Autonomous vehicle must be covered by an insurance policy of $5,000,000	TN	CA, VT
Autonomous vehicle must meet registration, titling, and insurance requirements	AL, AZ, GA, IA, KS, KY, LA*, MS, NE, NH, NC, ND, OK, PA, SD, TN, TX, UT, WV	AK
Only permitted if human driver is present in the vehicle		CT, NY
Autonomous Vehicles are exempted from equipment requirements that support human drivers or other laws that reasonably only apply to human drivers	AL, FL, KS, KY, LA*, MS, NC, NV, OK, PA, SD, WV	CA

*Alabama and Louisiana statutes with asterisks refer only to commercial autonomous vehicles.
**Nevada insurance policy is $1.5 million.

Some states impose additional requirements on the operation of autonomous vehicles. States that require a permit or approval to operate have different standards for approval.

California has additional safety standards for AVs.[13] Nevada requires AVs to be equipped with a means of disengaging the autonomous system, and a visual indicator that the system is engaged.[14]

In New York, AV testers must conduct tests under the supervision of the New York State Police.[15] Pennsylvania requires AV operators to give a municipality 10 days’ notice that they intend to operate in the municipality.[16] In Texas, AVs must be equipped with a recording device installed by the manufacturer.[17]

Commercial Autonomous Vehicle Statutes

Several states have statutes concerning the use of commercial AVs vehicles, as detailed in the table below.

A driver-assistive platooning system is where two or more commercial vehicles travel together at electronically coordinated speeds using driver-assistive technology, with or without a licensed driver in the vehicle.

Low-speed autonomous delivery vehicles are vehicles that travel at varying speeds, generally lower than 35 miles per hour, on sidewalks or public roads. On-demand autonomous vehicle networks are those that offer services to deliver passengers or goods to specific locations.

Permitted Commercial Autonomous Vehicles by State

Type	State
Driver-Assistive Platooning System	AL, AK, CT, GA, IN, KY, LA, MD, MN, MS, NV, NM, NC, ND, OK, PA, SC, SD, TN, TX, UT, WV, WI
Low Speed Autonomous Delivery Vehicles	FL, NC, PA, WV
On-Demand AV Network	AL, AZ, IA, MS, NE, NV, NH, ND, OK, SD, UT, WV
Nonspecific Commercial	KS, LA, PA, WV

Calls for Research and Taskforces and Other Statutes

Connecticut, the District of Columbia, Maine, Oregon and Washington do not have statutes governing the operation of autonomous vehicles. Instead, these states mandate further research, or have created task forces to study AVs.

Illinois preempts local governments from banning autonomous vehicles, but does not otherwise regulate AVs.[18] Maryland’s AV statute authorizes the conversion of traditional vehicles into autonomous vehicles, and authorizes the sale of converted AVs, but does not regulate their operation.[19]

Alaska, Delaware, Hawaii, Idaho, Massachusetts, Missouri, Montana, New Jersey, Ohio, Rhode Island, Virginia and Wyoming have not yet enacted laws covering the regulation of autonomous vehicles.

Takeaways

While states have overlap in their regulation of autonomous vehicles, they still differ in important ways, even down to which parts an AV must possess to operate in each state. States are also still looking to the federal government to set safety standards for AV manufacturers.

Until the federal government acts in this area of law, autonomous vehicle manufacturers need to take a state-by-state approach in rolling out their AVs to ensure they are complying with each state’s requirements. There is no one most restrictive state that manufacturers can aim for and know they are necessarily meeting every other state’s standards.

Manufacturers can look to NHTSA’s voluntary guidelines as a baseline for minimum safety standards, but they will need to check each state’s statute for additional safety requirements, paying particular attention to California and other states that require a permit or some other form of express authorization to operate.

Manufacturers should also ensure their AVs can comply with all state traffic and safety laws, and that they can achieve a minimal risk condition during failures of the automated driving system, as required by many states.

Buyers of AVs also need to check the law in their state before attempting to use the fully autonomous mode on their vehicle. Buyers should pay particular attention to any insurance requirements, and should speak with their insurer to verify that AVs are covered under their policy.

Stay tuned for future changes to autonomous vehicle laws — they’ll be needed if the industry is going to advance further.

[1] https://www.brookings.edu/articles/the-evolving-safety-and-policy-challenges-of-self-driving-cars/.

[2] Id.

[3] https://www.nhtsa.gov/vehicle-manufacturers/automated-driving-systems.

[4] https://www.reuters.com/business/autos-transportation/tesla-gains-report-trumps-team-planning-federal-self-driving-vehicle-regulations-2024-11-18/; https://finance.yahoo.com/news/trump-team-seeking-ease-us-091551301.html.

[5] Id.

[6] https://stateline.org/2024/10/28/self-driving-cars-arent-here-yet-but-states-are-getting-the-rules-ready/.

[7] Id.

[8] https://www.autoinsurance.org/which-states-allow-automated-vehicles-to-drive-on-the-road/.

[9] https://www.brookings.edu/articles/the-evolving-safety-and-policy-challenges-of-self-driving-cars/.

[10] https://www.autobodynews.com/news/kentucky-wrestles-with-how-autonomous-vehicles-might-reduce-collisions.

[11] Id.