OFF THE WIRE
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
