Who was really at fault in fatal Uber crash? Here's the whole story

The Uber self-driving accident would become, at least for a time, the pinnacle example of a bigger idea: Self-driving cars, tested on city streets among the unwitting public, might simply be too dangerous to allow.

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The Volvo SUV was headed north, just past the iconic bridge over Tempe Town Lake. Rafaela Vasquez was behind the wheel. It was the same route the vehicle had taken all night.

Then, a woman stepped out of the darkness and into the road. 

The SUV hit 49-year-old Elaine Herzberg so hard it knocked her out of one of her shoes. 

Other cars screeched to a halt. Police arrived.  

Even before the on-scene interviews were finished, it was clear this would be far from an ordinary investigation of a fatal traffic accident.  

Vasquez was at the wheel. But the vehicle had been driving itself.  

The Volvo was owned by Uber, the technology company that was in a race to perfect autonomous driving. Self-driving cars, Uber believed, were the key to its survival. Other companies were already in testing, too.

The fallout from the Tempe crash — the first-ever pedestrian fatality involving a self-driving car — would promptly drive Uber’s autonomous program out of Arizona. 

It would raise questions for the Tempe police, two county attorneys and the Governor’s Office.


It was an idea that already made some people angry enough to harass other autonomous vehicles in metro Phoenix.  

Now, one year after the fatal accident, self-driving cars run by other companies continue to roll down some of the same roads where Uber had tested a year earlier. And the crash that had rocked the world has turned into a collection of questions. 

Who — or what — was responsible for the death of Elaine Herzberg? If a self-driving car didn't — or couldn't — stop itself, was it really self driving at all?

And did the fatal crash really change the course of the technology, the industry? Or was it but a passing moment in a long journey toward a world where vehicles drive themselves?


A self-driving Uber car in Tempe struck and killed a woman in 2018. Nicole Schaub, Arizona Republic

'It's Uber's vision'

Arizona’s embrace of Uber as a technology company began long before the day a flatbed truck hauling self-driving Volvos pulled up in front of the state Capitol.  

The company, which made its name as a ride-share service of regular cars driven by humans, launched in Arizona in 2012. As in many locales, it ran headlong into questions about competition with traditional taxi services and about state regulation. Even as the sharing service grew, it could technically have been considered illegal.  

By 2014, the Arizona Department of Weights and Measures was issuing $1,800 fines to Uber drivers — when it could find and catch them — for operating in violation of the state laws that required anyone transporting passengers to carry a license, commercial plates and minimum insurance. The state Legislature passed a bill that would have legalized the services, but Gov. Jan Brewer vetoed it because it had insufficient insurance requirements. 

Then, Doug Ducey won the gubernatorial election. As one of his first acts after he was sworn into office in January 2015, Ducey fired the Weights and Measures director.  

The governor's chosen replacement, Andy Tobin, announced he would stop targeting ride-share services just days before Super Bowl XLIX was played in Glendale. 

Ducey made no secret that he supported attracting Uber and other technology companies to Arizona, in part by keeping regulation to a minimum. 

"Companies like Uber and Lyft are innovative, entrepreneurial technologies, and I want to see those companies thrive," Ducey said at the time. "They also create jobs. That's something we want to see more of, not less." 

The Legislature then passed a bill that legalized ride services, and Ducey signed it in April 2015. It requires $250,000 of liability insurance while a passenger is in the vehicle, criminal background checks on drivers and vehicle inspections. It also set a zero-tolerance policy for drug and alcohol use by drivers. 

In June 2015, Ducey called Uber "one of the most dynamic companies in the nation" while praising its new operations center in downtown Phoenix. 

Then in August, Ducey took the next step. He issued an executive order that permitted self-driving vehicle tests on public roads in Arizona. A working group he convened was focused on preventing regulation that would inhibit that industry. 

The Google Self Driving Car Project, now called Waymo, was first to bite on the executive order. In April 2016 the company announced its test fleet rolling on public streets in Chandler. 

In August of that year, Uber secretly notified Ducey’s office the company would be testing self-driving cars in Arizona. The public was not informed. The tests only came to light through public records requests long after the fact.  

By that time, the company was already in turmoil. 

Uber had been sued by Google over claims it had poached self-driving vehicle technology (and later paid $250 million to settle) and facing a public backlash that prompted many customers to delete the app from their phones. 

A self-driving Uber vehicle was caught on video running a red light in San Francisco.  Anonymous sources later told the New York Times that those cars were running on faulty maps. 

Then the company got in a dispute with the state of California, with regulators there demanding special registration of the self-driving vehicles.  

Uber saw self-driving cars as its future. Google, with its own self-driving fleet, was charging hard at the same business, and other companies were nipping at versions of the same technology. For Uber, the race for autonomy was a race for survival.  

"It starts with understanding that the world is going to go self-driving and autonomous," Uber's then-CEO Travis Kalanick told Business Insider in an August 2016 interview. "So if that's happening, what would happen if we weren't a part of that future? If we weren't part of the autonomy thing? Then the future passes us by basically.” 

So amid the debate with California regulators, Uber packed up about nine vehicles and sent them to Arizona.  

Ducey was ready to welcome them. 

Three Volvos strapped to a flatbed served as the backdrop for a hasty press conference. The truck did a slow roll down 17th Avenue in Phoenix. Then the governor spoke into the microphones, in front of the Capitol’s flagpoles.  

“We lose tens of thousands of Americans every year in avoidable accidents caused by human error,” Ducey said as the cameras pressed close. “It’s Uber’s vision that we will avoid these accidents with human error, and actually have increased highway safety.” 


'The whole world is watching'

As Vasquez’s Volvo came to a stop in the right lane of Mill Avenue on March 18, 2018, Herzberg was motionless on the ground. Cars behind them screeched to a stop.  

Vasquez stayed in the vehicle, making a phone call. The first police officer arrived about 6 minutes later.

A television news crew noticed the accident scene and captured footage of the dented Uber vehicle amid the red and blue emergency lights, with Herzberg’s bicycle laying nearby.   

Tempe Fire personnel performed chest compressions on Herzberg, who was unresponsive. Within a half hour, she was taken to HonorHealth Scottsdale Osborn Medical Center and pronounced dead. 

Officer Joe Guajardo talked to Vasquez, and later reported that she “appeared to be scared and in shock.” 

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Soon another officer, Kyle Loehr, arrived to perform a sobriety test.  

By the time he got there, Vasquez’s bosses from Uber had already arrived. She was sitting in her supervisor's Ford crossover, parked nearby.  

The sprinklers from a nearby park sprayed the sidewalk. Loehr, body camera rolling, walked Vasquez to a flat spot nearby. He observed no swaying. Her eyes were clear, and so was her speech. She told the officer she took a prescription medicine, but had not ingested it that day. 

Loehr used a green pen light to test her eyes. 

“Vasquez exhibited none of the validated clues of impairment,” he wrote later. “Based on my training and experience, I made the determination that Vasquez was not impaired.” 

Loehr asked Vasquez about the SUV and how she operated it.  

Vasquez told police she had her hands at the 5 and 7 o’clock positions on the wheel, hands cupped like a “c” prepared to grab the wheel if needed. 

But most of Vasquez's other responses regarding the autonomous car, her role as the driver and the capabilities of the vehicle were redacted in the video and written police reports. 

Efforts to reach Vasquez for this story were unsuccessful. At the time, she told police she felt bad for the family of the woman she hit, and said she was concerned about her job.  

But even in that first hour, those at the crash scene seemed to know this was different from any other fatal accident.  

"This is going to be a setback for the whole industry, which is not what I want," Vasquez said to Loehr.  

Loehr explained Miranda rights to Vasquez.  

"There's a hypothetical possibility that it could go criminal," he said. "I don't foresee it going that way."  

But officers on the scene wanted to make sure they covered all the bases.  

"This is kind of an interesting scenario, right?" Loehr said. "These are those automated cars, and kind of, the whole world is watching. It's going to be one of those things like, there's going to be a lot of people who review this." 


'When will the robots rise up?'

By the night Herzberg died, autonomous vehicles were already ubiquitous in certain parts of metro Phoenix, and not everybody was happy about sharing the road.  

Google’s self-driving experiment, called Waymo, was testing white vans across Chandler. Records from the city showed some public complaints. 

Chandler and Tempe police records showed some of the vans were followed, drivers were harassed. In late 2017, a man threw rocks at two Waymo self-driving vans.  

Soon after, a dark-colored Jeep tried to force vans off the road six times. Waymo later told police that the Jeep driver once came to a stop, got out and began yelling at the van to get out of her neighborhood.  

Months after the fatal Uber crash, a Waymo driver cruised through a Chandler neighborhood and saw a bearded man in a driveway raise a handgun and aim it at the van.  

When police arrested the man, he said he was trying to scare the Waymo driver, and he cited the fatal Uber crash as his motivation. 

As for the reports, Waymo said in a statement, "Over the past two years, we’ve found Arizonans to be welcoming and excited by the potential of this technology to make our roads safer. We believe a key element of local engagement has been our ongoing work with the communities in which we drive, including Arizona law enforcement and first responders.”   

Opposition to self-driving technology even has led to the formation of a group that calls itself the Human Driving Association. Among the items in its manifesto is the belief that no car should ever be built without a steering wheel. 

Hesitancy or not, people are sharing the road with autonomous vehicles, particularly in Arizona. 

In addition to the ride service Waymo launched in December, Tesla Motors now adds additional autonomous capabilities to its cars through software updates, and the company's boisterous CEO Elon Musk recently promised the cars would be capable of driving unassisted from point to point. 

"Your Tesla will soon be able to go from your garage at home to parking at work with no driver input at all," Musk posted on Twitter Dec. 9.

Short of full autonomy, features such as collision-avoidance braking and parallel-parking assistance are being offered in more and more vehicles, and that trend is likely to continue. 

“As I look 10 years out, we are certainly going to see more autonomy in land, sea and air,” said Arizona State University futurist in residence Brian David Johnson. “That is the hardware, the mechanical and also the software and computation.” 

He said it's natural for people to not only fear that humans won’t perfect the technology, but to not trust the technology itself. He says that when he speaks to large audiences, he’s often asked, “When will the robots rise up and take over the world?” 

“These cars live in a broader system, the city, and when we design that system, we need to be ensuring that everybody is safe,” Johnson said. 


'Arizona, where robots roam'

There was no question Vasquez’s SUV had hit and killed Herzberg. 

But who was at fault — whether anyone was at fault — was far from clear.  

The accident made headlines from Los Angeles to London. “Self-Driving Uber Car Kills Pedestrian in Arizona, Where Robots Roam,” wrote the New York Times. A day later, a Wikipedia page had been created for Herzberg’s death. 

Two days after the accident, Tempe’s police chief tried to frame a version of the events.

Though the car had made no attempt to brake, Chief Sylvia Moir said the crash was likely “unavoidable.” She told the San Francisco Chronicle, “It's very clear it would have been difficult to avoid this collision in any kind of mode.”  

But even then, police detectives were tracking down Vasquez for further investigation, and securing warrants for the video shot by the car’s cameras — and for data from Vasquez’s two phones.  

The day after Moir said the accident appeared unavoidable, police released video from inside the Uber Volvo that showed Vasquez looking down toward her right knee and not at the road when the accident occurred. Three months later, police released documents from their investigation. Their findings put the crash in a new light. 


'The crash was deemed entirely avoidable'

The details of Vasquez's day leading up to and after the accident are documented in hundreds of pages of police reports and videos shot by the car's cameras.

Vasquez got to work at 6:30 p.m. on March 18, at the faceless warehouse on 14th Street near Priest Drive in Tempe. 

The police reports don’t say what she did for that first hour at work, but it was common for drivers to receive a briefing on driving scenarios being tested with the cars as well as changes to the cars’ programming.  

By about 7:45 p.m., Vasquez was ready to hit the road.

As she waited for the door to open to pull out of the garage, she removed a cellphone from a gray bag. The car’s video shows her with both hands near her right knee before pulling out of the driveway.

She pulled the car out onto the street, then stopped behind Philly’s Sports Bar & Grill to switch the car into autonomous mode.  

Moments later, according to video from the SUV's interior monitoring camera, Vasquez continued to look down near her right knee and even appeared to say something and laugh.

Some autonomous Ubers picked up passengers — a surprise bonus and a free ride for somebody using Uber’s app. But Vasquez’s job that night was limited to test driving.

The route was circular, going north on Mill Avenue to Curry Road, east to Scottsdale Road then north to the city of Scottsdale. There, the car turned around and headed back south, to Rio Salado Parkway and back to Mill.

In their final report, police noted that Vasquez looked down 166 times when the vehicle was in motion, not including times she appeared to be checking gauges or mirrors. In all, they concluded, Vasquez traveled about 3.67 miles total while looking away from the road.

Records from the video streaming service Hulu, obtained by the police, indicate that starting at 9:16, Vasquez played an episode of “The Voice,” The Blind Auditions, Part 5, on her phone. 

Assuming she was watching that year’s current season, the episode would have first aired just a few days earlier. Contestants were still making their initial auditions for judges, sight unseen. One hopeful sang Marvin Gaye’s “What’s Going On.” 

The car made it to the third lap. 

At 9:59 p.m., as the Volvo approached Herzberg at 43 miles per hour, the car and Uber’s technology inside it tried to process what they detected ahead in the road. 

The radar, cameras and "light detecting and ranging," or lidar, picked up Herzberg six seconds before the collision. But the computer initially couldn't determine what she was, according to a report from the National Transportation Safety Board. 

"The self-driving system software classified the pedestrian as an unknown object, as a vehicle, and then as a bicycle," the report said. 

But even once she was classified as a bicycle, the software couldn't immediately tell which way she was headed.

Finally, 1.3 seconds before the impact, the self-driving system determined the vehicle needed to apply the brakes to avoid a collision.

It was something only Vasquez could do.

Uber had taken away the ability for the self-driving car to brake itself in emergencies, although it could do so at lights and stop signs. 

The vehicles were giving jerky rides, braking at every minor obstacle, including small birds flying in front of the cars. An NTSB report on the accident said Uber disabled the system to prevent "erratic vehicle behavior."

The Volvo came equipped with City Safety Technology, an emergency braking system the company installed in its cars to avoid or mitigate crashes. But Uber officials had disabled that system as well when the car was operating in autonomous mode. Emergencies were left for the driver to handle. 

A key question is whether Vasquez knew, or understood, the current limitations of the car. Uber has said repeatedly that drivers were briefed. But the portions of the police reports where she may be discussing the brakes are redacted.

The company also had reduced the number of operators in the vehicles from two to one. 

A second occupant might have seen Herzberg. The scene was dark, but not as dark as the front-facing camera on the Volvo made it appear in the widely circulated video of the crash. 

Police conducted a simulation a few days after the accident. It indicated that a pedestrian and a bicycle would be visible from 637 feet to 818 feet away under the lighting conditions that evening. 

Investigators later looked at the speed of the car, braking ability, lighting conditions, and Vasquez’s half-second reaction time once she did see Herzberg.  

Had Vasquez been paying attention, they found, she could have stopped the car 42.6 feet before the impact. 

But Vasquez never touched the brake until after the crash.

The crash would not have happened even with a driver whose reaction time was twice as slow as Vasquez’s, had the driver been watching the road.

It would have been close. Someone with a 1.25 second reaction time who pressed the brake would actually skid past the point where Herzberg was hit. But the extra time given to Herzberg from a braking car, rather than one traveling more than 40 miles per hour, would have afforded her time to make it across the street and out of the vehicle’s path. 

“For these reasons," Detective Kasey Marsland wrote in the “avoidability analysis," "the crash was deemed entirely avoidable.” 


'It's tragic what happened'

Uber's once close relationship with the governor soon soured. On March 26, Ducey sent a letter to Uber’s new CEO, Dara Khosrowshahi, suspending the self-driving operations in Arizona. 

In May, the company said it was pulling all its test vehicles out of the state. 

"We had a bad actor and we acted forcefully," Ducey said months later when asked about the crash. "There was a bad actor in that mix and it’s tragic what happened in that situation." 

The Maricopa County Attorney's Office examined Tempe's findings, but referred the case to the Yavapai County Attorney's Office after citing a possible conflict of interest because the office had partnered with Uber previously.  

Days after the Uber crash, Waymo’s CEO John Krafcik told the crowd at a Las Vegas conference that his company’s technology would have avoided the accident and that Waymo would continue with plans for autonomous ride service in Arizona by year’s end. 

And they did. In December, Waymo launched a limited ride service based out of Chandler, but serving parts of other nearby cities.  

The company also placed orders for 62,000 more Chryslers and 20,000 Jaguar I-Pace electric vehicles that it says will be used to expand the ride service in the coming years. 

And besides the tests from Waymo, Uber, Intel and General Motors on public roads, people in south Scottsdale have shared the roads with autonomous vehicles run by Nuro, which used them to deliver groceries for Fry's with no driver in the delivery vehicles. Those tests recently moved to Houston

Similarly, Walmart announced plans to launch self-driving vans with a safety driver inside in the West Valley.

Almost a year after the Uber crash, about 150 Waymo vans sat parked near Phoenix Sky Harbor International Airport covered in protective wrapping, presumably waiting to be put on the road.

Automobiles themselves offer a good historical perspective on how society has adapted to new technology that wasn’t safe out of the gate, said Johnson, the ASU futurist.

“Think of the automobile without seat belts and without airbags,” he said. “And mixed with highways. We had an incredible amount of death. Certainly there are still many automobile fatalities. But that is a good example. We are constantly finding safer ways to use these.” 

Still, Jim McPherson, a California attorney and self-driving car consultant, said self-driving car services may have to work hard to win the public trust. 

"People will expect the car not to be in collisions that they themselves could have avoided had they been driving," McPherson said.


'There is no basis for criminal liability'

The Yavapai County Attorney's Office was silent on the Uber investigation for nine months. 

Then, on a Tuesday afternoon in March, County Attorney Sheila Polk issued a press release. Attached was a letter addressed to Maricopa County. 

“After a very thorough review of all the evidence presented, this office has determined that there is no basis for criminal liability for the Uber corporation arising from this matter,” Polk wrote.

Polk had kicked the possibility of prosecuting Vasquez back to Maricopa County. Despite hundreds of pages of police reports from Tempe, Polk recommended further investigation by that department to determine whether criminal charges are appropriate for the driver. 

“Based on the entire investigation, this office has concluded that the collision video, as it displays, likely does not accurately depict the events that occurred,” she wrote, adding that additional examination of video and other evidence was needed.

The press release noted: "The Office will make no comments on this case as it is still pending."

Uber's metallic-colored Volvos had been gone from Arizona streets for a year. But they hadn't disappeared.

In December, long before Polk's decision was made, Uber had moved on.

The SUVs had rolled out on the streets of Pittsburgh — during daylight hours only, Uber said — and were self-driving again.


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