STATUTE:
California Vehicle Code, Division 12, Chapter 5, Article 7, Section 27803."(a) A driver and any passenger shall wear a safety helmet meeting requirements established pursuant to Section 27802 when riding on a motorcycle, motor-driven cycle, or motorized bicycle.
"(b) It is unlawful to operate a motorcycle, motor-driven cycle, or motorized bicycle if the driver or any passenger is not wearing a safety helmet as required by subdivision (a).
"(c) It is unlawful to ride as a passenger on a motorcycle, motor-driven cycles, or motorized bicycle if the driver or any passenger is not wearing a safety helmet as required by subdivision (a).
"(d) This section applies to persons who are riding on motorcycles, motor-driven cycles, or motorized bicycles operated on the highways.
"(e) For the purposes of this section, 'wear a safety helmet' or 'wearing a safety helmet' means having a safety helmet meeting the requirements of Section 27802 (see :Standards" below) on the person's head that is fastened with the helmet straps and that is of a size that fits the wearing person's head securely without excessive lateral or vertical movement.
"(f) In enacting this section, it is the intent of the Legislature to ensure that all persons are provided with an additional safety benefit while operating or riding a motorcycle, motor-driven cycle, or motorized bicycle."
FINE:
Only in California . . . it depends on who you ask.The LAW says (in pertinent part):
Section 40303.5:"Whenever any person is arrested for any of the following offenses, the arresting officer shall permit the arrested person to execute a notice containing a promise to correct the violation in accordance with the provisions of 40610 unless the arresting officer finds that any of the disqualifying conditions specified in the subdivision (b) of Section 40610 exist: . . . (d) Any infraction involving equipment set forth in Division 12 (commencing with Section 240000) . . . (Note: which includes section 27803, the helmet law.)"
Section 40610(b) states:
"Pursuant to subdivision (a), a notice to correct violation shall be issued as provided in this section . . . unless the officer finds any of the following:
"(1) Evidence of fraud or persistent neglect.
"(2) The violation presents an immediate safety hazard.
"(3) The violator does not agree to, or cannot, promptly correct the violation."Therefore, a violation of California's helmet law is -- as a matter or Law according to the language of the statutes -- an equipment violation, and carries with it only a need to show "proof of correction" and the payment of a $10 fine. However, . . .
The CHP (California Highway Patrol) says:
So, the fine for violation of California's helmet law can be anything from $10 and "proof of correction" up to $250.00 and one year's probation. It all depends on who you ask!
STANDARDS:
California Vehicle Code, Division 12, Chapter 5, Article 7, Section 27802."(a) The department may adopt reasonable regulations establishing specifications and standards for safety helmets offered for sale, or sold, for use by drivers and passengers of motorcycles and motorized bicycles as it determines are necessary for the safety of those drivers and passengers. The regulations shall include, but are not limited to, the requirements imposed by Federal Motor Vehicle Safety Standard No. 218 (49 C.F.R. Sec. 571.218) and may include compliance with that federal standard by incorporation of its requirements by reference. Each helmet sold or offered for sale for use by drivers and passengers of motorcycles and motorized bicycles shall be conspicuously labeled in accordance with the federal standard which shall constitute the manufacturer's certification that the helmet conforms to the applicable federal motor vehicle safety standards.
"(b) No person shall sell, or offer for sale, for use by a driver or passenger of a motorcycle or motorized bicycle any safety helmet which is not of a type meeting requirements established by the department."
COURT DECISIONS:
" . . . it is clear the law requires only that the consumer wear a helmet bearing a certification of compliance." Buhl v. Hannigan 16 Cal.App. 4th 1612 (1993)." . . . 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." Bianco v. California Highway Patrol, 24 Cal.App. 4th 1113 (1994).
"The courts held that citations should only be issued in two situations: (1) when a helmet was not certified by the manufacturer at the time of sale or (2) when a rider wearing a helmet certified by the manufacturer at the time of sale has actual knowledge of a showing of a determination of non-conformity with federal standards. . . . or (3) Other competent objective evidence from independent laboratory testing that the helmet does not meet FMVSS 218." Easyriders v. Hannigan (887 F.SUPP. 240).
NOTE: In the history of jurisprudence, there has never been a more ridiculous series of rulings and enactments than have occurred in California; with the courts' efforts to hold California's helmet law in, on the one hand, against the CHP's determination to act out every possible oppressive act of discrimination against bikers imaginable, on the other. The latest demonstration of the CHP's frustration with the confinements of the law appeared in March, 1996, with the issuance of CHP Bulletin #59. Shame on the lot of them!!
COMMENTARY:
From our beginning in 1993, it has been the position of the Helmet Law Defense League that all helmet laws are unconstitutional , in the absence of clear guidelines on how to comply with the statute -- like with a list of "approved helmets."
NO LIST? NO LAW! If a state, any state, cannot answer the question:
"How can a motorcyclist comply,
with certainty ,
with the provisions of the helmet law?"that state's statute(s) requiring the wearing of
a "helmet," "safety helmet," or "protective headgear"
is unconstitutionally vague.Although the California Legislature may have thought that they could authorize the Commissioner of the California Highway Patrol to set standards for helmets, the Commissioner was and is confined, by law, to adopting only those standards established by the National Highway Traffic Safety Administration. The California Highway Patrol has exceeded its authority and adopted standards regarding enforcement that extend far beyond Federal Motor Vehicle Standard (FMVSS) 218 -- the Federal standard for motorcycle helmets -- which is why the California helmet law will ultimately be successfully challenged on that basis alone, and removed. (see Juvenile Products v. Edmisten , 568 F.Supp. 714 (1983))
If the California Highway Patrol were, even at this late date, adopt FMVSS 218, then the California helmet law will be challenged on the basis that FMVSS 218 is not intelligible to persons of average intelligence, and removed. (see Washington v. Maxwell , 74 WASH.APP. 688, 878 P.2D 1220 (1994))
Today, there is a lot of activity going on the courts in an effort to encourage them to quit dodging the inevitibility of the situation. Most of this effort is being put forth by BOLT of California. It is our belief that if we can just keep the pressure on -- in fact if we could turn up the burner -- California's helmet law will be one of the next to go. We'll keep you posted.
