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Wednesday, June 29, 2011

CALIFORNIA: The following is a letter from Ray Henke to CA legislature and AG requesting information as to how CA will handle NHTSA's impending helmet law changes! Hoping individuals in other states will take heed and do the same!

Hi folks,
>     Now, "the day after," ..... has become my
> evening ritual, I wrote the following letter to the AG's office,
> asking for an opinion letter whether it will be their position that
> the California helmet law incorporates the new labeling changes to
> render illegal all helmets without the new labeling. I suggest that
> the request for an opinion letter is "timely" because riders should
> know well in advance of the effective date whether the helmets they
> buy between now and May 12, 2013 will be legal on May 13.
>     Certainly, this is the intent of the labeling change, to provide a
> new label that the feds think will permit law enforcement to
> effectively outlaw novelty helmets. As Jan pointed out, we must always
> keep in mind our objective, to wit, to ride free, not merely to choose
> the helmets we want or hold on to previously purchased helmets. So it
> really doesn't matter which way the AG rules, I figure one way or the
> other it is fucked, and my goal was actually to suggest to the AG that
> perhaps now is the time to throw up its hands, stop prosecuting helmet
> tickets, and just tell the legislature that the law, incorporating
> FMVSS 218, is not enforceable. Sending the problem back to the
> legislature is code for recognizing that the law as enacted is
> unenforceable. I make the arguments suggested in my previous post, and
> then remind the AG of the due process issues that have put it in an
> awkward position these past 15 years, post Bianco and Easyriders. In
> the later regard, perhaps the best and most pointed argument as
> addressed to the AG was one suggested by Mark some time ago that the
> prosecutors have engaged in ethical violations in taking these helmet
> tickets to trial post Bianco and the Easyriders with knowledge that
> they didn't have the evidence of the crime, to wit, evidence that the
> testifying officer had probable cause to believe that the helmet model
> had been determined noncompliant by NHTSA and that the rider had
> knowledge of the determination of noncompliance. Indeed, I think that
> for the AG's office this law has been a headache from the outset and
> the AG should consider itself among those who should be most
> concerned, given its complicity in 15 years of ethical violations, and
> perhaps ready now, as it should have been after Bianco and Easyriders,
> to throw in the towel, rather than up the ante by interpreting the new
> modifications to FMVSS 218 to apply retroactively to bikers who
> purchased their helmets with old DOT labels prior to May 13, 2013. Of
> course, if the AG replies that the new labeling rules will not apply
> to the consumer, then that's fine too as it defeats DOT's purpose in
> changing the labeling requirements. I say that it is stuck between
> "Iraq and a hard place" no matter how it rules, because applying the
> changes retroactively to the consumer will only open up new political
> and legal challenges. Please don't be misled by my suggestion that
> they throw it back to the legislature; all that means is that they
> make a determination that they can't enforce the law as written to
> incorporate FMVSS 218. If the AG seizes this opportunity to reconsider
> its commitment to enforcing the helmet law, for all the due process
> and new interpretive problems, the economic, or the potential ethical
> problems, I think the legislature will have a difficult problem
> writing a helmet law that conforms to due process, and as some have
> argued given the preemption issue in setting a standard different from
> FMVSS 218.
>     I don't know what will happen with this. Certainly it is not
> something that I would expect a quick response in terms of an opinion
> letter.  But hopefully, along with inquiries or position statements
> from others, the arguments will cause the AG's office to face the
> issues with regard to retroactive application, and perhaps lead them
> to consider the due process problems with the California helmet law
> and its enforcement, perhaps providing them the opportunity now to
> retreat gracefully.
>     Ray
> Dear Sirs/Madame's,
> The California helmet law incorporates FMVSS 218. The Department of
> Transportation has changed FMVSS 218 to require new helmet labeling
> for new helmets. Retailers are given the opportunity to sell off their
> old stock of helmets with the old labels through May 12, 2013 at
> midnight.
> The problem that I see arising is that if the labeling change is to be
> deemed incorporated as a part of our California helmet statute it
> could render illegal all helmets on the street with the old labels,
> indeed, all helmets with the old labels legally sold through May 12,
> 2013.
> My question is: Will it be the position of the Attorney General that
> when the change in FMVSS 218 comes into effect on May 13, 2013 that
> law enforcement will be charged with ticketing motorcyclists for any
> helmet, including those purchased on May 12, that does not comply with
> the new labeling requirements?
> I would urge that this is a timely question, for one, because our
> California motorcyclist consumers should be able to determine in
> advance whether to spend hundreds of dollars on helmets that might
> become illegal in California on the effective date of the FMVSS 218
> change. Second, obviously, there will be a huge economic consequence
> for these consumers if they are required to throw away good helmets
> just because they fail to have the new label. Third, this will cause
> an enormous state impact because the CHP will have the obligation to
> enforce the law if it is interpreted to outlaw 90 percent of the
> helmets used by California motorcyclists.
> Indeed, if the retailers are allowed to sell helmets with the old
> labels right up until midnight May 12, 2013, can the state ticket
> these riders the next day for noncompliance? If this is the state's
> position, then does the state have the obligation to inform the
> potential consumers between now and May 12, 2013 that the helmets
> being sold by retailers until that date will be illegal on May 13?
> FMVSS 218 is a standard the governs the manufacturers
> responsibilities, and I think the problem that can't be avoided is
> that the California statute incorporates Section 218, and therefore is
> subject to interpretation whether it renders illegal all existing
> helmets every time that FMVSS 218 is changed. Furthermore, it is
> likely that this will come up periodically, and if the conclusion is
> that riders must wear helmets compliant with FMVSS 218, the riders
> might have to buy new helmets periodically to be assured that they may
> ride without threat of being ticketed. For example, the science may
> outstrip the old impact attenuation requirements for helmets and DOT
> may conclude it appropriate to amend FMVSS 218 to require
> manufacturers to comply with more strict attenuation standards, again
> a change in FMVSS 218 that would render previously sold helmets
> noncompliant.
> I would suggest that the problem lies in the California helmet law
> which incorporates FMVSS 218, and I would suggest that the law itself
> is defective in this respect. The state of California has had problems
> with this statute ever since it was enacted. FMVSS 218 in its
> substances is merely a description of impact standards that helmet
> manufacturers must comply with in order to affix the DOT label. It had
> serious due process problems from the outset, as recognized by the
> appellate courts, where it was held "absurd" that the ordinary
> consumer or law enforcement officer should be able to tell from the
> fabrication of the helmet whether it complies with FMVSS 218. Indeed,
> the California helmet law, as it has been interpreted by the
> California courts does not bear any resemblance to FMVSS 218,
> specifically because to apply FMVSS 218 literally would violate due
> process. This decision in Bianco was then followed by the Easyriders
> v. Hannigan decision which issued an injunction against CHP
> enforcement of the California helmet law unless the officer has
> probable cause to believe the helmet model has been determined by
> NHTSA to be noncompliant AND the officer has probable cause to believe
> that the rider had prior knowledge that the helmet model had been
> determined noncompliant.
> The truth is that because of the due process challenges, accepted both
> by the California and federal appellate courts, FMVSS 218 has been
> essentially written out of the law for all practical purposes. And
> this is why I would suggest that the original problem with the
> California helmet law is its incorporation of FMVSS 218. Indeed, my
> observation is that the CHP makes no attempt to comply with the Bianco
> decision or the Easyriders injunction, rather it has just continued
> the arbitrary enforcement of the law, one of the faults in the
> California law that required its reinterpretation to comport with due
> process.
> These due process problems will not be solved now by requiring the
> consumer to comply with the periodic shifting content of FMVSS 218.
> Rather, this would only add to the uncertainty about what is required
> by the law, perhaps most obviously brought into focus in terms of the
> retailer who legally sells and the rider who purchases a helmet with
> the old DOT label on May 12, 2013.
> There are a host of other problems with the California helmet law,
> although in my opinion the due process issues are the most difficult
> to overcome. Indeed, I would suggest that the due process problems
> with any helmet law that incorporates FMVSS 218 are insurmountable.
> The answer that I would like to have you address is whether the AG
> will interpret the California helmet law to incorporate the new
> labeling changes in FMVSS 218. I think that all California riders
> should be able to know where they stand well in advance of 2013,
> indeed we should know now, as we are making decisions to buy very
> expensive helmets every day, and we will be relying on the
> representations of the retailers that the helmets being sold are
> "legal," when in truth, if it be the case, they will be legal only
> through 2013.
> Secondly, while I am not asking for an opinion on this, rather just
> making a suggestion, perhaps the AG should consider consulting the
> legislature with the observation that the helmet law cannot be
> enforced as written to incorporate FMVSS 218. Bianco and Easyriders,
> supra. And that the new changes in FMVSS 218 will render a substantial
> hardship on the consumer and law enforcement as nearly all helmets
> used by motorcyclists on our California streets will be rendered
> noncompliant as of May 13.
> I empathize that this has been a headache for the AG's office ever
> since the enactment of the California helmet law. But the problem was
> created by the legislation, and specifically its incorporation of
> FMVSS 218. The legislature did not consider the due process issues
> that the state and federal courts have found persuasive as requiring
> essentially that FMVSS 218 be written out of the law. From my humble
> perspective, this law has been a burden also upon law enforcement
> officers throughout the state of California as they find themselves in
> court citing the California helmet law incorporating FMVSS 218 without
> any training or ability to defend their citations.
> Indeed, the problem is more serious, in that the CHP has never
> attempted to conform to the appellate reinterpretation of the helmet
> law in Bianco, nor has it made any effort to comply with the federal
> injunction in Easyriders. Indeed, in a trial in Santa Clara, entitled
> Quigley et al. vs. CHP, Sargent Valdez, called by the AG as the person
> at CHP most knowledgeable about the helmet law, stated in his
> testimony that he was unaware of Bianco or Easyriders and that the CHP
> officers could tell from the fabrication of a helmet whether it
> complied with FMVSS 218, directly contrary to Bianco and Easyriders.
> Indeed, he also testified that there is no law in California that
> requires riders to maintain the DOT labels on their helmets and that
> riders can take them off or paint over them, which has always been the
> case. The Bianco decision merely created the presumption of compliance
> from the attachment of a DOT label.
> Finally, for the AG's office and for the prosecutors who have
> prosecuted these helmet ticket trials, I think that these
> prosecutorial offices and the individual prosecutors should have very
> serious ethical concerns about how these tickets have been prosecuted
> heretofore. I say this because it has always been my understanding
> that it is an ethical requirement that the prosecutors conform to the
> law and not bring cases that are ill founded under existing law. I
> would indeed posit that there have been no prosecutions under the
> California law in the last 15 years, either by the AG or local
> prosecutors, that have faithfully applied the law as reinterpreted by
> Bianco and Easyriders. That would require the prosecutors to put on
> evidence that prior to the arrest the officer had probable cause to
> believe that the helmet model had been determined noncompliant by
> NHTSA and that the rider knew that the helmet had been determined
> noncompliant.
> I believe that the AG's office and the local prosecutors recognize
> that they don't have that essential foundation for the prosecutions,
> and yet they proceed to prosecute the cases nevertheless.
> Even as the law currently exists it is clear that the CHP and police
> are put in the untenable position of applying the law illegally and
> the prosecutors have been required to serve unethically. This is a
> failed system, it uniformly violates due process given the inherent
> ambiguities in the law, and the fact is that the law cannot be
> enforced either by the police or prosecutors except arbitrarily and
> illegally.
> What I would hope to do, therefore, in addition to asking my question,
> is to suggest to you that this may be an opportune time for your
> office to tell the legislature that the law is unworkable rather than
> dig in deeper with all of the collateral negative economic effect that
> implementing this new change to FMVSS 218 will have.
> Thank you very much for your consideration in the above regard.
> Ray Henke