Tuesday, September 2, 2014
Why Would You Remove What Helps You?
In January of 2014, a couple of groups of motorcyclists in Washington state tried to get a bill passed in the legislature that would have removed all mention of FMVSS-218 from the helmet law (RCW 46.37.530). Their reasoning was, that since they didn't feel they could affect the full repeal of the helmet law, they would "nibble away" at it. I wonder if they thought of the ramifications of "nibbling away" at this particular portion of the law.
In my opinion, removing FMVSS-218 from the law is a bad idea. Whether you remove the wording stating that it is the standard for the definition of a helmet from the state law, it remain the Federal standard that helmets are required to meet. So removing the explicit mention of the law won't change what is considered by the state a helmet. But what I can foresee a few bad things happening if that bill (which I have been told by a few people they are planning on trying to get passed this legislative session) gets passed. I'll try to explain what they are here:
1. Since paragraph 3 of RCW 46.37.530 will then say; "For purposes of this section, "motorcycle helmet" means a protective covering for the head consisting of a hard outer shell, padding adjacent to and inside the outer-shell, and a neck or chin strap type retention system." The WSP will look at it as describing what they oppose as 'novelty helmets' and exercise their legal duty under law to "adopt and amend rules" to bring the helmet law back into line with what they want. The WSP will create a WAC (Washington Administrative Code) that brings the RCW in line with their concept of what a helmet is. Without legislative oversight or discussion, since it is already the WSP authorized ability to "adopt and amend" the rules of the laws.
2. With FMVSS-218 removed from the law, all the case law fighting against it becomes moot. No longer can you claim the law is unconstitutional because it has FMVSS-218 as its base (which the Washington Court of Appeals found in State v Maxwell, and State v. Sanaski). The fact that without FMVSS-218 as a standard, the state can create its own arbitrary guidelines of what constitutes a helmet. "Roadside Testing" suddenly may become possible (which with FMVSS-218 it isn't), and the amount of discretion law enforcement must take before making a stop now, all goes away. If a cop sees you riding by, and doesn't like your look, he would be able to use the idea that your helmet may be in violation to stop you. Once he has you stopped, because he now would have the probable cause of a helmet check to pull you over, what else can he right you up for?
3. As it stands now, having FMVSS-218 in the RCW allows motorcyclists to fight a helmet ticket with great effect. Since it is relatively easy to show that on most occassions law enforcement can't tell the difference between a DOT compliant helmet and one that isnt. If law enforcement can't tell, then where was their probable cause for stopping you? If you remove FMVSS-218, you take away your ability to fight the ticket on those grounds. It leaves the motorcyclist at the discretion of what the law enforcement officer 'thinks' is a proper helmet. By removing FMVSS-218, you leave it to the WSP to make the rules and create a new WAC, because the standard definition of a helmet certainly aren't going to be in the RCW.
So, if you want to give the State the ability to make the rules, support the idea of removing the Federal standard from the law. If you would feel more comfortable forcing the State to follow the US Constitution, and State law, oppose the efforts to remove FMVSS-218 from the law. It is all about Freedom folks...Freedom for the citizens, not Freedom for the State to do as they wish.
Come talk to me about this sometime. There is almost always an unintended affect when removing something from a law. Words are everything, and a slow deliberate process will help. Even if you support a bill, do your best to show how it can be used against what you want. When you get to the point that it does what you want, without ill effects, then support it. But don't support it because it seems like a quick way of getting something done, and looking like you are having a profound effect on life.
Catch you on the road sometime...