New legislation introduced in the California Assembly would mandate the state Department of Motor Vehicles revoke the registration of any autonomous vehicle that isn’t operated in compliance with state law.

Sponsored by Assemblyman Phil Ting, D–San Francisco, Assembly Bill 87 also includes fines of $25,000 per day and a provision prohibiting manufacturers or operators found to violate the law from operating any other autonomous vehicle in California for two years. For manufacturers, in particular, this would be a catastrophic punishment. Given how fast the technology is progressing, a two-year ban from operating any autonomous vehicles amounts to “one strike and you are out” of the self-driving car market.

Ting’s bill is a classic example of legislating by headline, which is a terrible way to make law. But it’s also notable in that it appears to create an authority—to revoke the registrations of self-driving cars—that the DMV has already used.

Back in December, ridesharing firm Uber argued its autonomous vehicles tests were legal, based on the plain meaning of the state’s testing regulations. The DMV ultimately disagreed, revoking the vehicle registrations of all of the Uber testing vehicles. Uber would later roll its shiny new Volvo XC90 test vehicles onto semitrailers bound for Arizona, where the company expected a more reasonable regulatory regime.

If the DMV already had the authority to revoke registrations in cases like Uber’s, why is it necessary to grant that authority again, as Ting’s bill does? Perhaps, as written, Ting is seeking to make revocation compulsory in cases like Uber’s. But that seems unlikely, given the department’s own explanation of the registration revocations.

Speaking on the revocations at the time, a DMV spokesperson said:

…consistent with the department’s position that Uber’s vehicles are autonomous vehicles, the DMV has taken action to revoke the registration of 16 vehicles owned by Uber. It was determined that the registrations were improperly issued for these vehicles because they were not properly marked as test vehicles.

Under the Vehicle Code, the DMV has broad discretion when it comes to revoking a vehicle’s registration and enjoys substantial deference in how it interprets the code. But there are only a limited number of areas of authority from which the DMV could draw its power to revoke Uber’s registrations.

The first, Vehicle Code Section 38750, empowers the department to draft regulations related to testing autonomous vehicles. Under that section, it may draft “special rules for the registration of autonomous vehicles.” In fairness to the DMV, within the adopted rules, there are special registration requirements, including a marking requirement. But there is no explicit authority to revoke a vehicle’s registration because it failed to comply with the rules. Whether it’s appropriate to infer that authority is unclear.

Then there’s Vehicle Code Section 8880, which states that registration may be revoked on the basis of fraud, mechanical safety and a slew of other rationales. The DMV could have, for instance, argued that the Uber test vehicles were mechanically unsafe and thus subject to Sec. 8880(a)(2), the explanation I cited above from the DMV spokesperson does not jibe particularly well with the authority granted under Section 8880.

Relying on the vagaries of Section 38750 and the rules promulgated under its authority was risky business for the DMV. Had it chosen, Uber could have plausibly argued that the DMV’s interpretation was dead wrong. Ultimately, it didn’t matter whether the DMV actually had the authority it was claiming because, having marshalled the Office of the Attorney General, the department likely recognized that asserting the pretense of authority would be enough to force Uber’s hand. Litigating the matter, from Uber’s perspective, would have made little sense, given that other testing locales are available.

Now, only after publicly bringing an end to Uber’s testing in California, is the DMV seeking to explicitly affirm its authority to do what it has already done. Whether Ting’s bill is redundant will remain an open question. What is abundantly clear is that the discord between the rhetoric of “innovation” in California’s state government and the reality of legislative opportunism and regulatory capriciousness is more striking than ever.

Image by Cassiohabib