STATUTE:

Chapter 71 of the Consolidated Laws. Title III--Safety Responsibility; Financial Security; Inspection; Size and Weight, and Other Provisions. Article 9--Equipment of Motor Vehicles and Motorcycles. Section 381. Motorcycle Equipment. :

FINE:

Chapter 71 of the Consolidated Laws. Title III--Safety Responsibility; Financial Security; Inspection; Size and Weight, and Other Provisions. Article 9--Equipment of Motor Vehicles and Motorcycles. Section 381. Motorcycle Equipment. :

STANDARDS:

Chapter 71 of the Consolidated Laws. Title III--Safety Responsibility; Financial Security; Inspection; Size and Weight, and Other Provisions. Article 9--Equipment of Motor Vehicles and Motorcycles. Section 381. Motorcycle Equipment. :

COURT DECISIONS:

"Fact that this section requiring that motorcycle operators or riders wear protective helmets was enacted because of desire to qualify State for federal highway construction funds and that federal government thereafter eliminated requirement of a compulsory helmet law did not render this section invalid." People v. Bennett, 1977, 89 Misc.2d 382, 391 N.Y.S.2d 506.

"Subdivision 6 of this section requiring motorcycle operators to wear helmets was not unconstitutional because it delegated authority to commission of motor vehicles to adopt regulations with respect to type of helmet or specifications." People v. Newhouse, 1968, 55 Misc.2d 1064, 287 N.Y.S.2d 713.

That was in 1968. There have been several changes in the law since then that can override this outdated decision.

"This section prohibiting operating or riding motorcycle unless operator or rider wears protective helmet of type approved by commissioner was regulation of conduct which was within the scope of permissible legislative action." People v. Schmidt, 1967, 54 Misc.2d 702, 283 N.Y.S.2d 290, appeal dismissed 23 N.Y.2d 686, 295 N.Y.S.2d 936, 243 N.E.2d 153.

That was in 1968. There have been several changes in the law since then that can override this outdated decision.

"Subd. 6 of this section requiring motorcyclists to wear protective helmets is valid exercise of state's police power and is constitutional." People v. Bielmeyer, 1967, 54 Misc.2d 466, 282 N.Y.S.2d 797.

"Subdivision 6 of this section prohibiting operating or riding motorcycle unless operator or rider wears protective helmet of type approved by commissioner is too indefinite, removes from individual right to exercise his judgment or preference in use of personal adornment, and is unconstitutional." People v. Smallwood, 1967, 52 Misc.2d 1027, 277 N.Y.S.2d 429.

Now don't get excited. This basis for this decision was set aside when the New York Legislature amended the law in 1967 to require a "list of approved devices" under subsection 9 -- the list negating the "too indefinite" argument. However, with the banning of all such lists in 1988, the argument and this decision can be brought forth in the next court action.

"Wearing motorcycle helmet 'cowboy style,' i.e., sitting on back of head and resting on top of defendant's shoulders, did not constitute compliance with motorcycle helmet law, McKinney's Vehicle and Traffic law s 381, subd. 6, as purpose of requiring helmet was to protect wearer's entire head. People v. Bloomfield, 1985, 130 Misc.2d 151, 495 N.Y.S.2d 133.

We included this one because it shows that the spirit of the fight was alive and well in New York in 1985. However, it is also interesting to note that the nonsense of the purpose being to "protect wearer's entire head" is as weak as a two penny drink. Against the potential damage to the neck that was uncovered in New York over twenty-five years ago, the issue of what it is that helmets actually protect, and at what expense, is still open to debate -- in and out of court.

"Fact that many facets of human behavior adversely affect public health, welfare and safety, such as smoking, drinking and drug use, did not mean that unless all such harmful activities were dealt with by legislature, it was discriminatory for state to require that motorcycle operators and riders wear protective helmets." People v. Bennett, 1977, 89 Misc.2d 382, 391 N.Y.S.2d 506.

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.

As of 1994, the Commissioner adopted FMVSS 218. The New York helmet law was 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 "Secretary of the Transportation Cabinet" for New York 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 York bikers will be 100% FREE of the helmet law! (Someone has started the ball rolling: See "Current Activity" below.)

HISTORY:

The Helmet Law Defense League is looking for a volunteer from New York who knows the history of the helmet law in New York (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:

Mark Callahan has gone in with the right question and pulled the first written response from the department of motor vehicles. Callahan's letter to the department, their reply and his second round are available by clicking here (it'll take a while to load). This is the way the challenge starts. Now, with the State of New York demonstrating that they are unprepared to provide riders with a method to comply with the law, with certainty, (those brocuhures from NHTSA do nothing). The next thing to do is get a ticket for a helmet which has been certified by it's manufacturer as being in compliance with FMVSS218 (see above), and then take on the law over this vagueness defect. Now, since judges don't figure that bikers are smart enough to teach them anything about the law, Callahan could probably use the services of a "good attorney" when he gets his ticket. It's up to you folks in New York to see to it that he gets the necessary support . . . that is if you're interested in getting rid of the law.

(We, those of us at HLDL, would like to thank Mark for picking up the ball and running with this one. If you guys are paying attention, what he's doing will point the way to freedom from the helmet law, not only for New York, but for the other 44 helmet law oppressed states. GOOD JOB Mark! --quig)



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