Part One of Two – Passive Blood-Alcohol Monitoring

Last week, the National Transportation Safety Board recommended that all new vehicles be equipped with (a) passive blood-alcohol monitoring and (b) intelligent speed adaptation advanced driver assistance systems (ADAS). The NTSB issued these two recommendations after investigating a horrific New Year’s Day 2021 crash that killed nine people in Avenal, California. That crash occurred when an intoxicated driver crossed the centerline of a two-lane highway. At the time, he was traveling 88-98 mph—33-43 mph above the posted 55-mph speed limit. He struck a pickup head-on, tragically killing himself and a family of eight. The NTSB’s recommendations address two problematic aspects of this driver’s conduct that account for significant societal harm in the U.S.: impaired driving and speeding.

Is this anything new? And does it signify a potential move towards strict products liability by auto manufacturers for driver fault via illegal activity? This two-part post will address those questions. In short, the answers are (a) kind of, but not really, and (b) not quite—these technologies are nascent, not state of the art.

NTSB FARO Scans of Vehicles Involved in Avenal Crash

First, alcohol monitoring—the NTSB recommended either passive vehicle-integrated alcohol impairment detection systems, advanced driver monitoring systems, or a combination of the two.

But before the NTSB’s recommendation, Congress passed the Infrastructure Investment and Jobs Act in late 2021. The infrastructure bill required the National Highway Traffic Safety Administration to institute alcohol monitoring system requirements within three years (though NHTSA can seek an extension). But before that, NHTSA and the Automotive Coalition for Traffic Safety (a coalition of 17 auto manufacturers) began developing alcohol monitoring systems as far back as 2008—via the Driver Alcohol Detection System for Safety (DADSS) program. Interestingly, neither the bipartisan infrastructure bill nor the NTSB press release mention the substantial and sustained public-private partnership that is the DADSS program.

DADSS Breath-Monitoring and Touch-Based Systems

As part of the DADSS initiative, NHTSA and auto industry coalition ACTS contracted with Swedish supplier Autoliv (in a public-private partnership with an entity named Senseair) to develop an unobtrusive, contact-free breath-monitoring system. NHTSA and ACTS contracted with TruTouch to develop the touch-based sensing system. The breath-based system is further along, but it is not slated to be available for rollout in consumer vehicles until 2024. The DADSS’s goal is to make the touch-based system available for use in consumer vehicles starting in 2025. The DADSS rollout timeline is as follows:

  • 2021: Zero-tolerance (.02 BAC) directed breath sensors available for purchase by fleet operators
  • 2023: Zero-tolerance (.02 BAC) touch fleet sensors available for purchase by fleet operators
  • 2024: Fully passive breath sensors that can be installed in consumer vehicles & set at the legal limit
  • 2025: Fully passive touch sensors that can be installed in consumer vehicles and set at the legal limit

It is not yet clear when NHTSA might pass a rule requiring 100% implementation in new vehicles. The infrastructure bill requires full implementation two to three years after the NHTSA final rulemaking, but that hasn’t occurred yet. Getting this technology retrofitted into legacy vehicles is not even on the horizon.

In short, this technology is still developmental, still emerging. In 2019, the DADSS published a detailed SAE paper outlining the state of the technology’s development, including noting that field testing was underway. The DADSS recently launched a fleet rollout with trucking and logistics firm Schneider. Beyond that, it is not in widespread use in passenger vehicles. Still, given the state of the technology’s research and development, it is curious that recent NTSB and Congressional pronouncements on this technology fail to even mention the DADSS program or its work towards getting this alcohol-monitoring ADAS to market.

DADSS is a passive monitoring system. The NTSB also recommended advanced driver monitoring systems. These are inference-based systems. They use sensors and cameras to monitor driver behavior and vehicle performance for signs of distraction, impairment, or fatigue. When these behaviors are detected, the system infers driver inattention/fatigue. It then warns or intervenes. Some of these systems are available in consumer vehicles today. Further, an EU regulation requiring fatigue/inattention monitoring, warnings, and advanced alerts took effect in July 2022.

Inference-based systems, like most ADAS systems, can typically be overridden by driver behavior. In the Avenal crash, the impaired driver drifted onto the right shoulder, then overcorrected to the left and crossed the center line. Query whether current inference-based systems would prevent a crash when an impaired driver makes such a substantial steering input. Would the input override the fatigue/inattention monitoring system? And query whether more widely implemented ADAS systems that the NTSB report didn’t mention (like Lake Keep Support or Lane Departure Warning) might have been as likely as alcohol/impairment detection to make a difference.

The second half of this post will examine intelligent speed assistance technology and what it holds for the future in terms of regulation and products liability litigation.