STATUTE:

Title 39. Motor Vehicles and Traffic Regulations. Subtitle 1. motor Vehicle and Traffic Laws. Chapter 3. Motor Vehicles. Article 3. Equipment. Section 39:3-76.7. Protective Helmet of Proper Size To Be Worn By Operator and Passenger . . . :

FINE:

"NJ statute dictates a fine not exceeding $25 for violation of the helmet "law". And, as you know, no points are issued. As a matter of fact, basically all statutes that fall under Article 3 of the Motor Vehicle code in NJ are non-moving violations and are NOT subject to points." --Dave DeCillis

Thanks Dave. I gotta tell you, though; there are a lot of places around the country that would see $25 as not much of a deterrant to riding without a helmet, and I'm frankly surprised that New Jersey isn't one of the more active areas of the United States in the fight to get rid of the law . . . particularly since your statutes call for a "list", and there will never be a "list" of helmets "approved by the director". (see below)

STANDARDS:

Title 39. Motor Vehicles and Traffic Regulations. Subtitle 1. motor Vehicle and Traffic Laws. Chapter 3. Motor Vehicles. Article 3. Equipment. Section 39:3-76.7. Protective Helmet of Proper Size To Be Worn By Operator and Passenger . . . :

COURT DECISIONS:

See the update below.

COMMENTARY:

From our beginning in 1993, it has been the position of the Helmet Law Defense League that all helmet laws are unconstitutional , in the absence of clear guidelines on how to comply with the statute -- like with a list of "approved helmets."

NO LIST? NO LAW!

If a state, any state, cannot answer the question:

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

that state's statute(s) requiring the wearing of
a "helmet," "safety helmet," or "protective headgear"
is unconstitutionally vague.

Although the New Jersey Legislature may believe that they can authorize the "director" to establish and maintain such a list, the director is confined, by law, to adopting only those standards established by the National Highway Traffic Safety Administration, WHICH DOES NOT INCLUDE MAKING OR MAINTINING A LIST OF APPROVED HELMETS!

If the director has exceeded his authority and adopted anything other than Federal Motor Vehicle Standard (FMVSS) 218 -- including compiling and maintaining a list -- the New Jersey helmet law can be successfully challenged on that basis alone, and removed. (see Juvenile Products v. Edmisten, 568 F.Supp. 714 (1983))

If the director had adopted FMVSS 218, which the law insists that he ultimately must, the New Jersey helmet law is thereby rendered unconstitutionally vague and can be challenged on that basis, and removed. (see Washington v. Maxwell , 74 WASH.APP. 688, 878 P.2D 1220 (1994))

We believe that if you will write to the "director" for New Jersey and ask for the list -- tell them you are attempting to determine how to comply with the helmet law, "with certainty" -- someone can take whatever answer (or, more likely, a refusal to answer) to the courts, and New Jersey bikers will be 100% FREE of the helmet law!

HISTORY:

The Helmet Law Defense League is looking for a volunteer from New Jersey who knows the history of the helmet law in New Jersey (going back at least 15 years) to write that history down in article form and get it to us so we can post it here.

CURRENT ACTIVITY:

In a victory for motorcyclists, the law firm of Jerry Friedman, Esq. has succeeded in having New Jersey's helmet law declared unconstitutional!

On Friday, October 26, 2001, Monmouth County Superior Court Judge William Gilroy banned the enforcement of New Jersey's motorcycle helmet law in the case of Buist v. State of New Jersey.

Mr. Buist and his passenger were issued tickets on July 1, 2001 in the Boro of Manasquan for wearing illegal helmets. New Jersey's helmet law only allows motorcyclists to wear helmets from a list approved by the Director of New Jersey's Division of Motor Vehicles that meet certain specifications. In the lawsuit, Mr. Buist claimed that Motor Vehicles has never created such a list and that New Jersey's helmet specifications are contrary to those adopted by the U.S. Department of Transportation.

Mr. Buist and his passenger were represented in the case by Jerry Friedman, a Marlton attorney, who specializes in representing motorcyclists. According to Friedman, Motor Vehicle's failure to adopt the federal helmet specifications renders the helmet law unconstitutional. The federal helmet specifications were adopted in 1973 under the National Traffic and Motor Vehicle Safety Act, which provides for uniform national regulation of motor vehicle safety equipment. Judge Gilroy found that the federal standards pre-empted the New Jersey's specifications and banned the enforcement of the helmet law pending adoption by Motor Vehicles of helmet specifications consistent with the federal law.

WHAT'S THIS MEAN NOW?

The Judge banned the enforcement of the helmet law until Motor Vehicle adopts helmet specifications consistent with the federal law. That could take 6-8 months during which you can ride without a helmet, if you so choose.

Be advised that police departments around the State may not hear about the decision right away. Although the Judge entered his decision on October 26, 2001, a formal Order memorializing the decision will not be available for about ten (10) days. The effective date of the ban will be the date of the Order. If you ride without a helmet before the Order is signed, you may be issued a ticket. You would then have to go to Municipal Court and make the legal argument contained in the Memorandum referred to below and inform the municipal Court Judge that enforcement of the law has been banned by Judge Gilroy in Monmouth County.

If you receive a ticket after the Order is signed, you would then have to go to Municipal Court and produce a copy of the Order which will be available through my office.

I am requesting the Judge to order Motor Vehicle to advise all police departments, municipal courts and the State police about the ban in order to lessen the issuance of tickets after the ban takes effect.

However, Judge Gilroy did not ban prosecution of helmet tickets issued prior to his decision. If you are waiting to go to court on a helmet ticket, you should make the legal argument contained in the Memorandum referred to below and inform the municipal Court Judge that since the issuance of your ticket, the enforcement of the law has been banned by Judge Gilroy in Monmouth County.

IF YOU EVER RECEIVED A HELMET TICKET

In the lawsuit, Buist requested that the court certify the Complaint as a class action seeking the return of monies paid as fines by individuals in municipal court on tickets for wearing an "illegal" helmet since adoption of the federal specifications. Unfortunately, the Judge denied the request. However, those individuals may still be entitled to a return of their money for the fine and costs.

If, since 1973, you received a ticket under New Jersey's helmet law, N.J.S.A. 3:76.7, and either plead guilty or were found guilty, you can make an application to the municipal court in the township where you received the ticket for "Post Conviction Relief" under New Jersey Court Rule 7:10-2.

The steps and forms that follow will assist you if you want to seek a return of the money you paid in fines and costs.

STEP 1. OBTAINING INFORMATION

New Jersey Court Rule 7:10-2 requires that you file a "Petition for Post Conviction Relief" with the municipal court in the town where you received the ticket. The Petition must contain certain information. If you do not have all of the information, you may obtain it from the municipal court clerk's office. You will need the following information:

(A) the date and summons number of the ticket you received and the name of the town where you went to court;

(B) the date you plead or were found guilty, the amount of the fine and costs you paid, and the name of the municipal court judge;

(C) If you took an appeal from the municipal court, the docket number of the appeal, with a copy of the appellate decision attached;

(D) any prior post conviction relief proceedings you may have taken relating to the tickets, including the date and nature of the claim and the date and nature of disposition, and whether an appeal was taken from those proceedings and, if so, the judgment on appeal;

(E) the name of counsel, if any, representing you in any prior proceeding relating to the tickets, and whether you had you own attorney or the public defender; and

(F) whether you are presently in jail as a result of the tickets.

STEP 2. PREPARING THE PETITION

Once you have all of the information, you must prepare a Petition. Here is a sample of a completed Petition. A blank Petition follows which you may print-out and fill in with the information for your case. You do not need to type in the information. You may hand write it if you so choose. Mail the Petition along with the Memorandum that follows to the Municipal Court where you received the ticket with a cover letter like the one that follows the Memorandum.

After you file, the municipal prosecutor has 30 days to file an answer or move to dismiss your petition. If he moves to dismiss, he must give you ten days notice before the hearing date of the notice to dismiss. The judge will hear the motion to dismiss in open court. Be there to assert your position. If the prosecutor does not move to dismiss, he will file an answer and the court will schedule a hearing to decide on your petition.

At the hearing, the prosecutor may argue, or the judge may ask, why you didn't bring up the constitutional argument about the helmet law when you were in court on the ticket. Your best response would be that you were unaware of the constitutional issue at the time and that you now know the helmet laws is no good because it was recently struck down in court. Besides, your not a lawyer who would understand the nature of a constitutional issue.

Rule 7:10-2 provides that the Petition for relief should be granted if:

  1. the grounds for relief could not reasonably be asserted at the prior hearing (the argument in the paragraph above); or
  2. denial of the relief sought would result in fundamental injustice; or
  3. denial of the relief sought would be contrary to the Constitution of the United States.

    You should argue that all three of these apply and any one of them would be enough.

    If you win, the court will return your fine and costs paid on the ticket.

 The above information courtesy of the Law Offices of Jerry Friedman

If you know of any current activity regarding efforts to remove or otherwise amend New Jersey's helmet law, in the Legislature or the Courts, please e-mail that information to us so we can update this site. Thanks.





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Last updated: April, 1997
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