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Sunday, 29 November, 2020

Helmet Standard Law Versus Helmet Use Law

Date: 15 February, 2008

By: Chief

Imager, how in the world can something so seemingly simple get so incredibly complicated?

As you shall see, a helmet standard or specification law is completely different from a helmet use law.

So let us start with the real straight forward one — the helmet use law.

To begin with a state — any state, or any political subdivision of a state for that matter, can enact into law a 'helmet use law'. A helmet use law is nothing more or less than a law which, in effect, says:

(a) No person shall operate a motorcycle without wearing a helmet.

It is simple for the citizen, law enforcement and the courts to understand.

And if you, Joe Biker, do operate a motorcycle sans helmet you, Joe Biker, can be subject to criminal or civil penalties for disobeying your state's helmet use law.

You see a helmet use law is just that — a law stating people shall wear a helmet if they are engaged in "X" activity. A helmet use law is aimed dead center at the citizen and no one or no thing else. Nowhere in a use law is there any sort of definition of what the helmet looks like or the material it must be made from or any other such rot. That would turn the helmet use law into a helmet standard law. Which as you shall soon read cannot be enforced against the citizen.

Citizen compliance

Compliance by the citizen with a helmet use law is quite simple to determine:


Either way it means no citation (arrest) of or to the citizen. Why? Because in either of the two listed situations the citizen met his or her obligation under the law.

In this regard the California court case of Buhl v. Hannigan is of tantamount importance. Quoting Buhl in pertinent part:

"Their [plaintiff's] first claim in this respect is the law is too specific: The incorporated federal safety standards are so technical one must be a physicist or an engineer testing the product in a laboratory to ascertain whether a particular helmet complies. But underlying this argument is the proposition that the statute requires the consumer or enforcement officer to decide if the helmet is properly fabricated, and such a reading of section 27803 is absurd. When sections 27802 and 27803 are harmonized, as they must be (Bowland v. Municipal Court (1976) 18 Cal.3d 479, 489, 134 Cal.Rptr. 630, 556 P.2d 1081), it is clear the law requires only that the consumer wear a helmet bearing a certification of compliance" (emphasis added).

Without doubt the most important statement is "it is clear the law requires only that the consumer wear a helmet bearing a certification of compliance." And "only" is singularly the most important word.

In other words Joe Biker only has to wear a lid that has a "certification of compliance" affixed to the lid. Nothing about size, shape, material or what-have-you. Just the infamous "DOT" sticker. If old Joe does that he has met his lawful obligation. And that is the name of that tune. Period.

Moving right along, let us now turn our attention to the helmet standard law.

A helmet standard law

Is merely a law which sets forth the minimum standard, whatever that may become, which under operation of law and subsequent regulation legally recognizes just what in the hell is a helmet. It must also be simple for the citizen to comply with and simple for police to enforce, just as the Buhl court stated. Most importantly however, a helmet standard law is aimed smack dab at the:

Thus a helmet standard law could be like this:

(a) Any helmet offered for sale shall meet the criteria contained within Federal Motor Vehicle Safety Standard (FMVSS) No. 218.

(b) Each helmet sold or offered for sale for use by drivers and passengers of motorcycles shall be labeled per the federal standard and shall constitute the manufacturer's certification that the helmet conforms to FMVSS 218.

This is as it should be and, truth be told, as it must be. For there is no way any citizen, any policeman, any judge or any panel of judges can look at a helmet — any helmet — and correctly determine if a particular helmet is, in fact, a helmet.

Thus the sole reason for the manufacturers' certificate of compliance — the DOT sticker. It and it alone eliminates the guess work for the:

Along comes Bianco v. CHP

In the California case brought by Steve Bianco the court, in its decision, more or less tied itself (kind of) to the Buhl decision. Quoting Bianco in pertinent part:

"Thus, the federal law clearly preempts California, as well as any other state, from establishing its own motor vehicle equipment safety standards.

"[ ... ]

"[ ... ] Once a helmet is shown not to conform to the federal standards--as was the case with the E & R Fiberglass 'beanie' helmet--the presumption of compliance created by the self-certification label is rebutted.

"We conclude the statement in Buhl that consumer compliance with the state law only requires the consumer to wear a helmet bearing the DOT self-certification sticker does not apply when a helmet has been shown not to conform with federal standards and the consumer has actual knowledge of this fact. That the E & R Fiberglass 'beanie' helmet does not comply with the federal standards is supported by the tests performed at the request of NHTSA by two independent testing facilities as well as by E & R Fiberglass's agreement to recall the helmet. Also borne out by the record on appeal here is the fact that at least since his citations, Bianco has had actual knowledge of the determination that the 'beanie' helmet did not conform to the federal standards. Exhibit D to Bianco's original petition for writ of mandamus is a September 25, 1992, letter to Bianco from the NHTSA stating, among other things, that the 'beanie' helmet had been tested and shown not to comply with the federal standard" (emphasis added).

The good to come out of the Bianco decision was:

How something simple got so completely screwed up

In California the California Highway Patrol (CHP), as the lead law enforcement agency in the state, decided to enforce the helmet standard law against the citizen instead of against the manufacturer, distributor or dealer. They did so with good reason — according to them.

The CHP knew full well they could not cite a biker who had anything on his or her head as long as whatever the biker was wearing had the DOT sticker affixed. The cops would be laughed out of court if they tried. So the officers of the CHP, as directed by the officials at the highest levels of the CHP organization, started committing fraud. A criminal offense don't you know. They started citing bikers as if the bikers were the manufacturer or distributor or dealer of the helmet.

By using such tactics as:

The CHP and other police organizations have gotten away with this crime in California for the last 15 years or so. How? By claiming the lids they did not like were not helmets at all. It was and remains that simple.

In other words the CHP and most, if not all, other law enforcement organizations within California have been willfully and flagrantly violating the law for over 15 years.

Here in the U.S. federal law has preempted any state helmet standard law. What this means is that if a state wants to put in place a helmet standard law said state shall either use:

There is no option "C." Period, end of story.

Indeed the State of California, specifically the California Highway Patrol, adopted the federal standard (FMVSS 218). Why? Because helmet standards are, as an act of law and regulation, federally regulated equipment. Quoting Barclays California Code of Regulations:


"[ ... ] Safety Helmet Requirements.

"Motorcycle and motorized bicycle safety helmets governed by Vehicle Code Section 27802 shall meet Federal Motor Vehicle Safety Standard No. 218."

By adopting FMVSS 218 the CHP unconditionally stipulated to the not so mere fact that they have no, as in zero, authority over helmet requirements, compliance determination, testing and the like. It is in fact and in law a federal issue and only a federal issue.

Therefore no one, as in no person within the State of California, or any other state for that matter, has any authority, legal or otherwise, to determine what is or more importantly what is not — a helmet. The sole authority for that rests completely with the federal government. Specifically the Secretary, U.S. Department of Transportation (US DOT).

The critical bottom line

Hence, the singular issue here is — lack of jurisdiction.

Furthermore, because the state lacks the requisite jurisdiction each and every helmet ticket ever issued by California law enforcement, with one single exception, has been and continues to be illegal. Because of this all other issues or court challenges instantly become relegated to sub-issues.

The single exception is if the biker was not wearing anything on his or her head except hair. An actual 'no helmet' ticket if you will. (If you want more information on the governing federal statutes read this story and this one.)

That is all there is to it boys and girls. The differences could not be more clear or more striking.

It is clearly time to strike back.

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