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Thursday, 26 April, 2018
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Helmet Laws Suck (Part II of II)

Date: 15 December, 2007 (Click here to read Part I)

By: Chief

Imageh, back again I see. Excellent.

Now the federal standard takes the certification requirement one step further. Quoting FMVSS 218:

"The symbol DOT, constituting the manufacturer's certification that the helmet conforms to the applicable Federal motor vehicle safety standards. This symbol shall appear on the outer surface, in a color that contrasts with the background, in letters at least 3/8 inch (1 cm) high, centered laterally with the horizontal centerline of the symbol located a minimum of 1 1/8 inches (2.9 cm) and a maximum of 1 3/8 inches (3.5 cm) from the bottom edge of the posterior portion of the helmet."

Of note, and it is a very important note, it is the manufacturer not the U.S. Department of Transportation that is certifying the helmet conforms to the federal standard. Therefore the manufacturer has assumed both the responsibility and the liability for the helmet.

Additionally, the entire certification process is based upon the honor system. Manufacturers certify their products to be in compliance. However all products are not tested. They couldn't be. The tests are destructive. So the consumer is left to 'take it on faith' that the lid we purchase is legal. Hence the DOT symbol. That is our assurance and, more importantly, our insurance.

Whether a regulation can exceed the intent of the Congress is not at issue here. The bottom line is merely that if the lid you want to buy or already own has the symbol DOT on the back of it, well you, the biker, are in full compliance with your state's helmet law. I had better insert a qualifier on that. If your state utilizes the federal standard (FMVSS 218) or one which is identical to the federal standard you, the biker, are in full compliance with the law.

The following two statements are worth their weight in gold:

Why?

Because of:

In most states traffic tickets or traffic citations are treated as a criminal offense. A minor offense to be sure, but a criminal offense nonetheless. As such the burden of proof in order to find you guilty beyond reasonable doubt rests on the shoulders of 'the people' — the prosecution.

Hence, should you get stopped by a police officer and receive a ticket for an unapproved or illegal helmet or however it is worded and your state has a helmet law and your state's helmet law requires the DOT symbol affixed to the helmet then:

On the other hand if you get stopped by an officer and receive a ticket because you were flying free (not wearing a lid at all in a state which requires you to — feeling the air through your hair) or if your lid does not have a DOT symbol affixed to it then the burden of proof shifts from the prosecution to you. This is not a good way to try and win a lid ticket in court.

Because under both federal law and federal regulation the manufacturer is required to certify, prior to sale, that their helmets comply with the federal safety standard and because the federal standard is a performance standard and because purchasing a helmet requires an act of good faith on the part of the consumer, us and lastly because state helmet laws are required to be identical with the federal standard — it is for those reasons that I fully believe that state helmet laws are void for vagueness as applied.

For an officer to issue a citation for an illegal helmet or what-have-you based upon the opinion (subjective determination) of the officer would and does submit the motorcyclist to the whim of a police officer. What maybe a legal helmet to one officer maybe considered illegal to another officer. A thousand police officers have a thousand different opinions (remember arbitrary enforcement or discriminatory enforcement?).

In other words a law enforcement officer, no matter how well trained or how diligent, simply cannot determine a helmet's compliance with the federal or an identical state standard. It cannot be done.

Thus helmet laws are vague — as applied to police.

The U.S. Supreme Court has heard many cases pertaining to vague statutes. One of the most famous is Kolender v. Lawson. Contained within Kolender is this gem:

"[The] void-for-vagueness doctrine requires that penal statute define criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in manner that does not encourage arbitrary and discriminatory enforcement."

Looking at the above quote and being a member of the "ordinary people" class I can say that if a state's helmet law requires me to wear a helmet while riding a motorcycle and said helmet has a DOT symbol affixed which shows compliance with the law then that law is absolutely clear to me. I know what conduct is prohibited. Hence the law is not vague on its face or as applied to me.

The problem therefore resides not with the consumer but with the enforcement of a state's helmet law by members of law enforcement. The enforcement is opinion based. As such enforcement is both arbitrary and discriminatory. Once again the law is vague as applied by police.

The question that remains is how can a helmet be either defective or non-compliant with the federal safety standard or identical state standard? In actuality only the Secretary, U.S. Department of Transportation or the product manufacturer can make that decision. Quoting §30118:

"(a) Notification by Secretary. - The Secretary of Transportation shall notify the manufacturer of a motor vehicle or replacement equipment immediately after making an initial decision (through testing, inspection, investigation, or research carried out under this chapter, examining communications under section 30166(f) of this title, or otherwise) that the vehicle or equipment contains a defect related to motor vehicle safety or does not comply with an applicable motor vehicle safety standard prescribed under this chapter. The notification shall include the information on which the decision is based. The Secretary shall publish a notice of each decision under this subsection in the Federal Register. Subject to section 30167(a) of this title, the notification and information are available to any interested person.

"(b) Defect and Noncompliance Proceedings and Orders. - (1) The Secretary may make a final decision that a motor vehicle or replacement equipment contains a defect related to motor vehicle safety or does not comply with an applicable motor vehicle safety standard prescribed under this chapter only after giving the manufacturer an opportunity to present information, views, and arguments showing that there is no defect or noncompliance or that the defect does not affect motor vehicle safety. Any interested person also shall be given an opportunity to present information, views, and arguments.

"(2) If the Secretary decides under paragraph (1) of this subsection that the vehicle or equipment contains the defect or does not comply, the Secretary shall order the manufacturer to -

"(A) give notification under section 30119 of this title to the owners, purchasers, and dealers of the vehicle or equipment of the defect or noncompliance; and

"(B) remedy the defect or noncompliance under section 30120 of this title.

"(c) Notification by Manufacturer. - A manufacturer of a motor vehicle or replacement equipment shall notify the Secretary by certified mail, and the owners, purchasers, and dealers of the vehicle or equipment as provided in section 30119(d) of this section, if the manufacturer -

"(1) learns the vehicle or equipment contains a defect and decides in good faith that the defect is related to motor vehicle safety; or

"(2) decides in good faith that the vehicle or equipment does not comply with an applicable motor vehicle safety standard prescribed under this chapter."

So there you have it folks. According to the law — nobody — other than the Secretary, U.S. DOT or the manufacturer can make the determination that a lid is either defective or non-compliant with the safety standard. Nobody.

Additionally did you see anywhere within §30118 that the consumer shall be held responsible? No? I didn't either.

I did read where the manufacturer shall give notification to the owners of said products and provide the remedy to the defect or noncompliance.

Lastly, did you notice the "motor vehicle or replacement equipment" part? Nowhere did §30118 say anything about "motor vehicle equipment" which is what helmets fall under. And now you know why the limited definitions are so bloody well important. The limited definitions place motor vehicle equipment under the category of replacement equipment. Therefore enforcement of safety standards pertaining to either motor vehicles, replacement equipment or motor vehicle equipment remains with the Secretary, U.S. Department of Transportation. Not with your local police department or judge.

That said, it is time to take a quick look and see just how a manufacturer shall provide notification to us consumers pertaining to a lid that is found to be either defective or non-compliant with the safety standard. Quoting §30119(d)(2):

"Notification required under section 30118 of this title about replacement equipment (except a tire) shall be sent by first class mail to the most recent purchaser known to the manufacturer. In addition, if the Secretary decides that public notice is required for motor vehicle safety, public notice shall be given in the way required by the Secretary after consulting with the manufacturer."

In other words it is incumbent upon the manufacturer of the helmet to try and contact you (in writing) in order to provide you with actual knowledge that:

Got that? The manufacturer has been held responsible for the defective or non-complying product that the manufacturer produced and sold. Not the consumer. Furthermore the manufacturer has to provide a 'fix' or a remedy for the situation. Not the consumer.

The consumer cannot be held responsible for defective or non-complying products of a manufacturer.

In a state which has a motorcycle helmet law and uses the federal safety standard or an identical state standard with which to enforce said law, the only lawful enforcement police can take against a biker is if the biker has nothing on his head but his hair or, if he's bald, a sunburn.

A helmet which has a DOT symbol affixed to it is a complying helmet until determined otherwise by either the manufacturer or the Secretary, U.S. Department of Transportation. And nobody else. End of story.

The salient points are these:

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