STATUTE:

Title 32. Motor Vehicles. Chappter 32-20. Motorcycle Regulation. Section 32-20-4 Protective helmet required for minor -- Violation a misdemeanor. :

"No person under eighteen years of age may operate or ride upon a motorcycle on the public streets or highways of this state unless the person wears a protective helmet of a type meeting department of transportation motor vehicle safety standard 218 as in effect on January 1, 1984. No person may operate a motorcycle with any person under the age of eighteen as a passenger if the passenger is not wearing a protective helmet. . . ."

FINE:

Title 32. Motor Vehicles. Chapter 32-20. Motorcycle Regulation. Section 32-20-4 Protective helmet required for minor -- Violation a misdemeanor. :

". . . A violation of this section is a Class 2 misdemeanor."

Woah! Now that's some struct statute! A "Misdemeanor"? Better get rid of this one before they take away the exemption for riders over 18.

STANDARDS:

Title 32. Motor Vehicles. Chappter 32-20. Motorcycle Regulation. Section 32-20-4 Protective helmet required for minor -- Violation a misdemeanor. :

". . . of a type meeting department of transportation motor vehicle safety standard 218 as in effect on January 1, 1984."

The "department of transportation motor vehicle safety safety standard 218 as in effect on January 1, 1984" has changed so much since 1984 that it is hardly recognizible as the same standard . . . but it doesn't matter, because it was vague then just like it's vague now.

COURT DECISIONS:

We have been unable to uncover any court decision from a court of record, either from the South Dakota Appellate or Supreme Courts, which indicates that the question of whether or not the language of South Dakota's helmet law is constitutional has not been addressed in the courts.

COMMENTARY:

We realize that most motorcyclists in South Dakota 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 South Dakota 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 South Dakota Legislature is as a matter of law confined to adopting only those standards for helmets set by the National Highway Traffic Safety Administration as it existsTODAY . If the South Dakota Legislature has adopted anything other than Federal Motor Vehicle Standard (FMVSS) 218 as it exists now, the South Dakota helmet law can be successfully challenged on that basis alone, and removed. (see Juvenile Products v. Edmisten , 568 F.Supp. 714 (1983))

If the South Dakota Legislature had instead adopted FMVSS 218, today's version, the South Dakota helmet law would thereby be rendered unconstitutionally vague. (see Washington v. Maxwell , 74 WASH.APP. 688, 878 P.2D 1220 (1994))

We believe that if someone will write to the head of the South Dakota Department of Motor Vehicles, Safety or Transportation and ask how to comply with the helmet law, "with certainty," that same someone can take the answer (or, more likely, the refusal to answer) to the courts and South Dakota bikers will be 100% FREE of the helmet law!

Questions or Comments