8 Ball In The Wind

Monday, September 1, 2014

Washington Helmet Law Was Ruled "Unconstitutional"

In 1990, the legislature of Washington  State enacted the mandatory helmet law.  The WSP adopted the Federal Motor Vehicle Safety Standard 218 as the standard for what constitutes a helmet in Washington state.  They didn't adopt a portion of the standard, but the entire 16 pages of it.  The fact that FMVSS-218 is a standard for manufacturers, and not private citizens seems to have gone right over the WSPs collective heads.  But, by adopting FMVSS-218, the WSP were the ones to throw a monkey wrench into the machinery themselves.

In 1991, two motorcyclists, riding in two different jurisdictions were each ticketed under the helmet law.  The fact that they were both wearing helmets that law enforcement did not believe met the criteria of FMVSS-218 is what brought each a citation for "failure to wear an approved helmet".  Both men were found to have committed the infraction by the District Court.  They then both appealed to Superior Court, which reversed the judgements against them.  Why did the Superior Court do this?  Because they found that the use of FMVSS-218 as a standard for the law was "unconstitutionally confusing and burdensome."  The State of Washington appealed this ruling to the State Court of Appeals which made their ruling in 1994.

In their 1994 ruling; the Court of Appeals stated; "A statute is unconstitutional if it fails to provide fair notice; if the standards to which a citizen must conform are so inaccessible that an average person could not be expected to discover them by reasonable research efforts, then the statute does not provide the requisite notice."

The Court of Appeals found that; indeed, the use of FMVSS-218 was unconstitutionally vague and confusing.  "...In order to comply with the statute and the state regulations, and ordinary citizen would have to know where to find the Federal Motor Vehicle Safety Standards, or Standard 218.  Counsel and the court found it because we are aware of the Code of Federal Regulations, the index therein cites us to chapter 49, section 571.218.  The regulation itself consists of sections 1 through 7.3.4 and covers 16 pages.  Within those sections are topics such as scope--purpose--application--definitions--requirements--impact attenuation--penetration--retention system--configuration--projections--labeling--helmet positioning index--selection of appropriate headform--reference marking--helmet positioning--conditioning--impact attenuation test--penetration test-- and retention system test.  Also included are 7 1/2 pages of diagrams and 4 pages of charts."

The Court of Appeals continued; "The regulation fails to inform the average citizen of the location or legal citation of the federal standard it adopts.  We have not been advised how a citizen of common intelligence should discover this information."

They further stated; "The federal regulation has numerous sections relating to the qualities and tests to be supplied by the manufacturer.  Ordinary citizens would not be able to tell which protective helmet met those requirements, even if they could find the regulation.  In adopting the entire regulation, the State Patrol has made it impossible for ordinary citizens to understand what is required to comply with the Washington statute."

So, because the WSP adopted the federal standard for helmet manufacturers as the specification and definition of what is a helmet, the states helmet law was ruled to be unconstitutional due to its violation of the 14th Amendment of the US Constitution by not providing citizens "fair warning of proscribed conduct."  The WSP repealed the Washington Administrative Code that used FMVSS-218 as the standard.  Bringing the law into compliance with the US Constitution.

However, they reinserted FMVSS-218 into the law in about 2002.  Or rather they reinserted the legal citation for it, 49 C.F.R. Sec 571.218.  Which poses new questions, since now RCW 46.37.530 seems to only adopt portions of FMVSS-218.  Which is a violation of federal law in and of itself.  As the standard states that should a state adopt the standard, it must do so in it's entirety.  Which the Court of Appeals has already stated makes the law unconstitutional.  So either the standard has been adopted in its entirety, and the helmet law is once again unconstitutional, or the WSP has adopted only a portion of the standard, which is a violation of federal regulations as stated in the standard itself.

So which is it; is RCW 46.37.530 once again unconstitutional and therefore void and nullified as a law, or is the WSP in violation of federal regulations and law by only adopting a portion of the federal helmet standard for manufacturers and attempting to foist it upon the consumer?

I do find it amusing, that if a person follows paragraph 3 of RCW 46.37.530, they can manufacture their own helmet and 'certify' it meets the standards of FMVSS-218 without actually ever having to test the helmet to see if it meets the standard.  Simply having a DOT sticker on the helmet, and the label inside from the manufacturer is enough for them to certify their 'good faith' belief that the helmet meets the criteria of FMVSS-218.  The only way that such a tagged and stickered helmet can be proven NOT to meet the standard is by laboratory testing, per FMVSS-218.

Also, here is an excerpt from a letter from then Chief Counsel for NHTSA, Erika Z. Jones to Mr. Wayne Ivie, of the Oregon Dept. of Transportation; "Please note that Federal law does not prohibit the helmet's owner or any other person that is not a manufacturer, distributor, dealer, or repair business from removing the label from motorcycle helmets,  Thus, the owner of a motorcycle helmet is permitted to remove the label from his or her helmet for any reason without violating any provision of Federal law." (emphasis and underling added)

I can see things getting interesting in the future.

Catch you on the road sometime...

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