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Wednesday, 21 March, 2018

Helmet Laws Suck (Part I of II)

Date: 01 December, 2007

By: Chief

Imagead gum right they do. I don't know about you but I sure as shootin' do not need or desire any flavor or denomination of government telling me how to dress. My parents taught me that over 50 years ago. I can do it all by myself.

Not only do helmet laws suck but in my opinion, as well as others, lid laws are unconstitutional. But are they? Are helmet laws unconstitutional?

At the individual state level you bet they are. However erasing the various and sundry helmet (lid) laws which are scattered over most of the sovereign states law books will not be an easy task.

The singular issue as to why helmet laws are unconstitutional is that all, got that, all state helmet laws require police to make a subjective determination (opinion) of a piece of equipment (the helmet) based solely on the appearance (what it looks like) of the helmet. The legal phrase is, "arbitrary enforcement" or "discriminatory enforcement." The supreme court has stated that "arbitrary enforcement" or "discriminatory enforcement" of a law is a no-no.

In short helmet laws are unconstitutional because they are vague.

Now there are two types or classes of vague laws. The first is that a law would be vague and, as such, void if just the mere wording of the law would cause people or police and/or judges to guess at its meaning and requirements. A law like that would be considered 'void on its face'.

The second class of vague laws are laws which at first seem to be quite clear as to their meaning and requirements but when applied by the citizen or by police and/or by judges leaves at least one party confused. Hence, a law is void for vagueness — as applied — to at least one specific party. Be that party the citizen, the police or a judge is utterly moot. If a party is confused as to how a law:

Then the law in question is void for vagueness — as applied.

Pertaining to the helmet law, I submit that in the majority of states with lid laws the void for vagueness doctrine would fall in the 'as applied' class.

Now before looking at a state lid law a biker should find out if there is any appropriate federal law. And, don't you know, there is an entire chapter of federal law pointing specifically at and to motor vehicle safety. Furthermore, in case you were unaware of it, motorcycle helmets fall directly under motor vehicle safety. So sayeth the feds.

The specific federal law we are searching for is Title 49, Chapter 301 starting with §30101 and seems to go on forever. But, in this case, it is to our benefit.

While there is no written Congressional intent spelling out the 'why', there is a purpose and policy section. Quoting §30101:

"The purpose of this chapter is to reduce traffic accidents and deaths and injuries resulting from traffic accidents. Therefore it is necessary -

"(1) to prescribe motor vehicle safety standards for motor vehicles and motor vehicle equipment in interstate commerce; and

"(2) to carry out needed safety research and development."

I, for one, did not read where issuing citations to citizens is one of the purposes or the policy of the law. Prescribing minimum safety standards for vehicles and motor vehicle equipment has nothing to do the citizen either. But it does have everything to do with the manufacturer. The Congress clearly articulated that this law is aimed directly at, for and only the manufacturers of motor vehicles and motor vehicle equipment.

The definition section (§30102) spells out, quite specifically, who is responsible and liable for what along with what is a safety standard, among other things. Indeed reading that section it becomes obvious that the manufacturers are the primary (almost singular) source of redress or remedy for a vehicle or piece of equipment (helmet) that fails to meet the federal safety standard. I am not going to post all the definitions but I am going to put a few here. As you will read later on in this piece, these definitions are of extreme importance.

Quoting 49USC §30102(a)(1) — dealer:

"[M]eans a person selling and distributing new motor vehicles or motor vehicle equipment primarily to purchasers that in good faith purchase the vehicles or equipment other than for resale."

The most important phrase in that definition is "purchasers that in good faith purchase the vehicles or equipment." And that, friends and neighbors, is us — the consumer. To put it another way we, the consumer, purchase a helmet based upon the fact that who we purchased said helmet from would not sell us a product that is illegal to use.

It is the manufacturer who:

That process runs the gamut from airplanes to toasters to helmets. The consumer is at the bottom of the ladder and, as such, has no clue whether or not the airplane, toaster or helmet meets some sort of federal safety standard. And why should a consumer care in the first place? The consumer is the user of the product. The consumer is not the manufacturer of the product.

At the federal level the law is clear on that point. Manufacturers are held liable, not the consumer. At the state level it is the exact opposite. And that is as wrong as wrong can be.

I, as the user, should not be held criminally responsible for whether or not the helmet I am forced to wear complies with a federal safety standard. I should only be held criminally responsible for not wearing a helmet in those states which have helmet laws. Unfortunately, as we all know, that is not how it tends to play out in the real world.

Here is another definition that is worth getting to know — the motor vehicle safety standard. Quoting §30102(a)(9):

"[M]eans a minimum standard for motor vehicle or motor vehicle equipment performance."

The key word there is "performance." Not what a helmet looks like or based upon what someone thinks a helmet ought to look like. Performance only. Measured scientifically based testing of a helmet. And believe me there is a federal standard for a motorcycle helmet. Federal Motor Vehicle Safety Standard 218 is the federal regulation pertaining to lids. It is also known as 49CFR571.218. The CFR stands for Code of Federal Regulations by the way.

Quoting 49USC §30102(a)(7) — motor vehicle equipment:


"(A) any system, part, or component of a motor vehicle as originally manufactured;

"(B) any similar part or component manufactured or sold for replacement or improvement of a system, part, or component, or as an accessory or addition to a motor vehicle; or

"(C) any device or an article or apparel (except medicine or eyeglasses prescribed by a licensed practitioner) that is not a system, part, or component of a motor vehicle and is manufactured, sold, delivered, offered, or intended to be used only to safeguard motor vehicles and highway users against risk of accident, injury, or death."

Lastly I will quote from 49USC §30102(b)(1) — Limited definitions:

"In sections 30117(b), 30118-30121, and 30166(f) of this title--

"(A) 'adequate repair' does not include repair resulting in substantially impaired operation of a motor vehicle or motor vehicle equipment;

"(B) 'first purchaser' means the first purchaser of a motor vehicle or motor vehicle equipment other than for resale;

"(C) 'original equipment' means motor vehicle equipment (including a tire) installed in or on a motor vehicle at the time of delivery to the first purchaser;

"(D) 'replacement equipment' means motor vehicle equipment (including a tire) that is not original equipment;

"(E) a brand name owner of a tire marketed under a brand name not owned by the manufacturer of the tire is deemed to be the manufacturer of the tire;

"(F) a defect in original equipment, or noncompliance of original equipment with a motor vehicle safety standard prescribed under this chapter [49 USCS §§ 30101 et seq.], is deemed to be a defect or noncompliance of the motor vehicle in or on which the equipment was installed at the time of delivery to the first purchaser;

"(G) a manufacturer of a motor vehicle in or on which original equipment was installed when delivered to the first purchaser is deemed to be the manufacturer of the equipment; and

"(H) a retreader of a tire is deemed to be the manufacturer of the tire."

I'll tell you this much, those limited definitions are a Godsend when we get to §30118. Don't worry, you'll see what I mean.

Meanwhile, back at the ranch, there is another section of this federal law which is a boon to us. Section 30103. This one is a humdinger let me tell you. It is, succinctly put, a supremacy clause. Quoting §30103(b) in pertinent part:

"Preemption. - (1) When a motor vehicle safety standard is in effect under this chapter, a State or a political subdivision of a State may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle or motor vehicle equipment only if the standard is identical to the standard prescribed under this chapter. However, the United States Government, a State, or a political subdivision of a State may prescribe a standard for a motor vehicle or motor vehicle equipment obtained for its own use that imposes a higher performance requirement than that required by the otherwise applicable standard under this chapter.

"(2) A State may enforce a standard that is identical to a standard prescribed under this chapter."

The long and short of this critically important section is that any state which has a motorcycle helmet law on its books must use either the:

Furthermore should a state decide to enforce either the federal standard or that state's identical standard the state must enforce the standard against the manufacturer of the helmet — not the citizen. Either standard is, after all, a performance standard.

Hence most states simply incorporate the requisite FMVSS (FMVSS 218) by reference into their very own helmet law.

Yeah, this is all well and good and all that rot but how, pray tell, does a consumer tell if a helmet is legal? Well, by golly, that is simple. A person can tell that the helmet they desire to purchase is legal by seeing if the lid has a "certification of compliance." Quoting §30115(a) in pertinent part:

"In General. - A manufacturer or distributor of a motor vehicle or motor vehicle equipment shall certify to the distributor or dealer at delivery that the vehicle or equipment complies with applicable motor vehicle safety standards prescribed under this chapter. A person may not issue the certificate if, in exercising reasonable care, the person has reason to know the certificate is false or misleading in a material respect. Certification of a vehicle must be shown by a label or tag permanently fixed to the vehicle. Certification of equipment may be shown by a label or tag on the equipment or on the outside of the container in which the equipment is delivered."

And there you have it. As a helmet is a piece of equipment the certification of compliance need not be affixed to the helmet. It can be affixed to the shipping box instead. That is the federal law. Period.

Continue on to part II of II.

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