On many occasions, different courts in the separate states have ruled that there was sufficient clarity in the statutes to define what is meant by "safety helmet" that they would not find their respective helmet laws vague. But one of two things were common with each of these cases.

(1) The statute required a list of "approved headgear" or "safety helmets" or whatever, so the court's were justified in saying: "Just look at the 'list'. If your helmet's not on the list, you're not in compliance. If your helmet is on the list, you are in compliance." Or,

(2) The point was not adequately argued (documented) so the court did not fully understand the problem.

(Actually, three dynamics were are work -- the third being a disgusting cross between the belief that helmets are actually safe and a disquieting prejudice against the motorcycling community which defies either explanation or justification.)

In any case, in most of the states the issue of the vagueness of the statute was never raised so the court's have not ruled on the subject at all. In the states where the subject was brought to the courts, the courts ran (not walked) to a "list" to show that compliance could be accomplished "with certainty."

But what if they didn't have or couldn't make a list? Then what?

Why the states cannot make lists of approved helmets.

The three basic types of helmet law statutes are:

• 1. The statute requires that the commissioner, director or someone make and maintain a list of "approved" helmets, headgear or whatever.
  
• 2. The statute spells out specifications for a helmet, or requires the commissioner, director, or whoever to adopt SNELL, ANSI or some other standard; or
  
• 3. The statute says that the "approved" headgear must comply with the provisions of the Federal Regulations, usually FMVSS 218.

1. THE WEAKEST LAW IS THE ONE THAT RELIES ON A LIST OF HELMETS. Those states are:

Alabama, Florida, Georgia, Kentucky, Louisiana, Maryland, New Jersey, New Mexico, New York, Oklahoma, Pennsylvania and South Carolina. (Of these, only three -- New Mexico, Oklahoma and South Carolina -- have partial helmet laws which apply only to persons under a specified age.)

Federal Law requires that all states be uniform in the regulations (definition) they adopt. If you think about it, it just makes good sense. If every state could adopt any standard they wanted to adopt, then you would literally have to carry a different helmet for each state in order to make a cross-country trip -- and Federal Law prohibits such a stupid requirement.

The court case that best brings this fact to light is entitled Juvenile Products v. Edmisten. In Juvenile Products , the item of discussion was infant seats, but the need for consistent regulation, and resulting mandates, are the same. The court explained that the state regulation (definition) regarding infant seats must be identical to the Federal standard, to wit:

"Under National traffic and Motor Vehicle Safety Act, states play a role in enforcement of federal regulatory scheme created by Act, but states may enforce no standards which are not identical to federal standards. National traffic and Motor Vehicle Safety Act of 1966, Section 103(d), as amended, 15 U.S.C.A. Section 1392(d)." Juvenile Products v. Edmisten , 568 F.Supp. 714 (1983) (emphasis added)

Well, exactly the same need for consistent standards is the same with helmets, and in that the Federal Government, through the National Traffic Safety Administration (NHTSA) has not compiled, adopted or maintained a "list of approved helmets", NO STATE may enforce any statute that is based on such a list. That's just a fact of law!

2. NEXT COME THE STATES THAT ADOPTED STANDARDS OTHER THAN FMVSS 218. Those states are:

Alaska, Arizona (the statute doesn't state standards at all), Arkansas, Delaware, Hawaii, Idaho, Indiana (adopted 1960's standard, and did not update), Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, North Carolina, North Dakota, Ohio, Oregon (adopted Snell and ANSI -- more than just FMVSS218), Rhode Island, South Dakota, Tennessee (adopted an outdated FMVSS218 standard), Texas, Utah, Vermont, Virginia and West Virginia and Wyoming.

Because these states have not adopted regulations "identical" to the federal regulations, their respective helmet laws can all be challenged as unconstitutional on that basis, and removed.

The best way we have found to expose the fact that a statute does not rely exactly on the Federal regulation FMVSS 218, is to write to the "commissioner", "director", "superintendent", "administrator", or whomever the state has put in charge of "adopting" regulations regarding safety helmets, and write them a letter. Ask the following question:

"How can a motorcyclist comply,
with certainty ,
with the provisions of the helmet law?"

If they answer your inquiry, and they state that they have adopted anything other than FMVSS 218, you can move into court and challenge the law for being in violation of "The Act" -- the foundation of ALL helmet statutes found in the United States -- per the Juvenile Products decision.

To date, no state has challenged their helmet law on this basis. But the decision from the Juvenile Products court has paved the way for this attack, and will undoubtedly get some sort of a major reaction in our favor. After all, the law requires that nothing other other than FMVSS 218 be adopted, so how can the law deny a challenge of a helmet law statute which has adopted, or forced to be adopted, a separate regulation; particularly since to do so violates Federal Law?

3. THEN THERE ARE THE 5 STATES THAT ADOPTED 218, AND JUST FMVSS218. Those states are:

California, Connecticut, Kansas, Nebraska and Wisconsin.

The foregoing is provided as educational information only, not legal advice. Since we are not attorneys, therefore they insist that we are not allowed to give you legal advice. If you need MORE "information only", get in touch and we will be happy to provide it (court cases, etc.). There are a handful of lawyers out there who can handle these cases. If we find one, we will tell you who they are. But generally we will not give the most obscene, and most frequently given, legal advice -- "go talk to an attorney." Some things we just won't do.

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