I don't know if that's the reasoning that will hold up in court. Would a judge say a 1 in a billion chance is "extremely likely? That reasoning would apply to all cars in general wouldn't it? Driving is potentially dangerous no matter what car you drive. People are guaranteed to die in car accidents everyday just by sheer volume and that would be true if Tesla didn't exist.
Don't get me wrong, I'm not apologizing for them. I'm just dubious of getting a conviction.