STATUTE:

Chapter 66. Motor Vehicles. Article 7. Traffic Laws; Signs, Signals and Markings; Accidents; Weight and Size; Traffic Safety. Part 4. Traffic Laws Generally. Section 66-7-356. Mandatory Use of Protective Helmets. :

"A. No person under the age of eighteen shall operate a motorcycle unless he is wearing a safety helmet securely fastened on his head in a normal manner as headgear and meeting the standards specified by the director. . . . No person shall carry any passenger under the age of eighteen on any motorcycle unless the passenger is wearing a securely fastened safety helmet, . . . ."

FINE:

If you have information about the amount of the fine for violating New Mexico's helmet law, please e-mail it to us. Thanks.

STANDARDS:

Chapter 66. Motor Vehicles. Article 7. Traffic Laws; Signs, Signals and Markings; Accidents; Weight and Size; Traffic Safety. Part 4. Traffic Laws Generally. Section 66-7-356. Mandatory Use of Protective Helmets. :

". . . The director shall adopt rules and regulations establishing standards covering the types of helmets and the specifications therefor and shall establish and maintain a list of approved helmets meeting the standards and specifications of the director. . . ."

COURT DECISIONS:

"Provision valid exercise of power of parens patriae. -- Requiring minors to wear helmets while riding a motorcycle would perhaps be a valid exercise of the power of parens patriae and would enable the state to protect youths whose judgment might not yet allow them to exercise their individual freedom judiciously with regard to their own safety." 1969 Op. Att'y Gen. No. 69-14.

There is no way that a 27-year-old decision of this type will hold up today. The opinion of the New Mexico Attorney General at that time was based, we're certain, on unsubstantiated claims that today -- with almost thirty years of helmet law experience -- will not hold water in a court action against the statute.

"Authority to approve safety helmets not violative of due process. -- The delegation to the commissioner of motor vehicles (now director of the motor vehicle division) of the power to determine what type of helmet should be worn under an ordinance mandating the wearing of approved safety helmets by motorcycle operators did not deprive the appellee of due process nor did the fact that the state commissioner of motor vehicles adopted the standards determined by the testing of a third person make such testing unreasonable." City of Albuquerque v. Jones, 87 N.M. 486, 535 P.2d 1337 (1975).

That is in 1975, over twenty years ago. Since that time the realization that such a position would literally cause chaos on interstate travel has turned this position into useless linguistic goop.

"Ordinance requiring wearing of helmet appropriate exercise of police power. -- A city ordinance which requires the operator of a motorcycle to wear an approved safety helmet is an appropriate exercise of the city's police power and therefore is constitutional." City of Albuquerque v. Jones , 87 N.M. 486, 535 P.2d 1337 (1975).

This decision has to do with the limited question of the State's right to impose safety regulation on individuals under the police powers, and not on the subject of unconstitutional vagueness.

In other words, the definition of "safety helmet" is vague; which means the New Mexico statute requiring motorcyclists to wear "safety helmet" is vague; which means the New Mexico helmet law is unconstitutional, (outdated) Attorney General's opinions and City of Albuquerque v. Jones notwithstanding.

COMMENTARY:

We realize that most motorcyclists in New Mexico do not feel impacted by the helmet law in any real way, at this time. There are two reasons, we believe, that it is important to maintain a constant vigilance regarding the New Mexico helmet law: 1) We believe that helmets are dangerous in many situations, in that in addition to all the commonly accepted problems -- vision and hearing impairment, heat retention, and others -- the weight and design of most of the traditionally accepted helmet styles make then a serious threat to the neck, particularly a young neck. And, 2) a modification of the statute to include adults is much more of a threat when the statute is already on the books, and there are no complaints about it. We think it is very very important that motorcyclists complain, early and often. The price of freedom is, after all, eternal vigilance.

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, for instance, 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.

The New Mexico Legislature is as a matter of law confined to adopting only those standards for helmets set by the National Highway Traffic Safety Administration, which does not include a list of approved helmets. If the New Mexico Legislature has caused any other standard to be adopted, anything other than Federal Motor Vehicle Standard (FMVSS) 218, which they apparently have, the New Mexico helmet law can be successfully challenged on that basis alone, and removed. (see Juvenile Products v. Edmisten , 568 F.Supp. 714 (1983))

If the New Mexico Legislature had adopted FMVSS 218, the New Mexico helmet law is thereby unconstitutionally vague. (see Washington v. Maxwell , 74 WASH.APP. 688, 878 P.2D 1220 (1994))

We believe that if you will write to the head of the New Mexico Department of Motor Vehicles or Highway Patrol and ask how to comply with the helmet law, "with certainty," -- ask for the "list of approved helmets" -- you can take their answer (or, more likely, refusal to answer) to the courts and New Mexico will be 100% FREE of their helmet law!

Questions or Comments