The now famous Bianco v. CHP decision is the result of a challenge by Mr. Steve Bianco (The Helmet Law Defense League's National Director, and State Director for BOLT of California) over the validity of, and legal foundation for, CHP Bulletin #34 -- the CHP's questionable amendment to California's helmet law which started the infamous campaign of prosecuting motorcyclists who were wearing helmets that the CHP did not like.
Less than a month after the issuance of Bulletin #34, Mr. Bianco was cited for wearing an "unapproved helmet" -- early July, 1992. He figured out right away that something was up, and that that something was a very good angle of attack on California's helmet law. The fact that the CHP was daring to challenge the legality of one helmet over another meant that all kinds of issues involving what does or does not constitute a legal helmet had been brought to the table. He also seemed to know (even those of us that know him still wonder how?) that this mistake could ultimately be fatal to the law. All kinds of issues such as: Who makes the call as to what is legal? Who takes the liability for any injury that results from that choice? Where is any of this provided for in the law? And a myriad of other questions of a much more complicated nature which resulted in the realization that in the absence of a list of helmets from which to choose to comply with the law, that the law would ultimately fall for vagueness. (He also knew that no one would ever produce such a list, but that's another story.) The "No List? No Law!" attack was born!
Mr. Bianco was tried and found "not guilty" on the first citation, and then on one other; both for allegedly violating CVC 27803 per CHP Bulletin #34. CHP officers cited Mr. Bianco on the claim that he had violated the 27803 statute by wearing a helmet which did not comply with California's helmet law, but did not present any testimony against him except that contained in CHP Bulletin #34.
The District Attorney did not appeal either of these two acquittals, but the Traffic Court also did not ban the continuing ticket writing campaign based on CHP Bulletin #34, leaving Mr. Bianco faced with further citations for the same charge -- a ritual of citation, trial and acquittal which Mr. Bianco believed gave him what he needed. He decided to take the issue to a higher court.
Following the second acquittal, and acting without an attorney, Mr. Bianco filed an action in the San Diego Superior Court called a "Petition for a Writ of Mandate". In layman's terms, what that means is that Mr. Bianco asked (petitioned) the court to issue a court order (writ) to force (mandate) the California Highway Patrol to confine themselves to the provisions of the helmet law statutes; and to cease their self-certified attack on bikers who were wearing the smaller (some believe safer) half shell "beanie" style motorcycle helmets. Mr. Bianco moved against the California Highway Patrol and CHP Bulletin #34 on the basis that he and others had, in essence, been cited by them for violating CHP Bulletin #34, and not the helmet law statutes themselves. The Superior Court, in what appears to have been an effort to defend, as a priority, the CHP's act of issuing and enforcing CHP Bulletin #34, as if by proclamation ruled that the requirement of CVC 27803 -- which relied on the "manufacturers certification" (DOT sticker) -- was superseded by CHP Bulletin #34, thereby effectively ruling that the Traffic Court had erred, and that Mr. Bianco was responsible for wearing a helmet which he could prove complied with FMVSS 218.
However, before the ink had dried on that judgment, Division Two of the Fourth Appellate Court issued their decision in the matter of Buhl v. Hannigan, in which that court stated: " . . . the proposition that the statute requires the consumer or enforcement officer to decide if the helmet is properly fabricated . . . is absurd" -- which is exactly what was required by CHP Bulletin #34 The California Highway Patrol had taken on themselves to provide a means for enforcement officers to determine whether or not a helmet was properly fabricated, and to make consumers criminally liable based on that ad hoc (at the whim of the citing officer) criteria.
So, when the court denied Mr. Bianco's petition, it in essence established the legality of such law enforcement practices, and biker compliance requirements, which had just been described by the Buhl court as "absurd".
Since it all happened so close to the time of the original decision, Mr. Bianco moved back into the Superior Court for reconsideration on the grounds that the Buhl court had confirmed Mr. Bianco's contention that the only requirement regarding proper fabrication was that the user wear a helmet bearing a "certification of compliance (DOT sticker)" -- a requirement of the statute obviously amended by issuance of CHP Bulletin #34.
When the reconsideration motion was denied by the Superior Court, in virtual disregard of the Buhl decision, Mr. Bianco moved up on appeal.
Mr. Bianco contended on appeal that while on the one hand, the Superior Court had ruled that CVC Section 27803 "prohibits the use of helmets not meeting FMVSS 218," they offered no other criteria for compliance, save the proposition, by implication, that the statute requires the user to determine proper fabrication. In fact, by its ruling, the Superior Court excluded all other possibilities save the one exception -- that the statute requires the user to understand and comply with the provisions of FMVSS 218 (the Appellant's complaint in Buhl).
On the other hand, argued Mr. Bianco, the Appellate Court in Buhl had said that such a reading of 27803 was, in a word, "absurd."
Following months of preparing and filing briefs, researching law, and working his way through the process required on appeal, Mr. Bianco was ultimately denied on appeal, and the decision of the Superior Court was upheld.
With regard to the conflict between the Superior Court decision, and that of the Buhl court, the Bianco court repeatedly stated that Mr. Bianco was taking the Buhl statement "out of context." But, it is clear to anyone with a common understanding of the English language that "absurd" is exactly what the Buhl court called a "reading of 27803" which would put the responsibility for proper fabrication of a helmet on the consumer. (Granted, the Buhl court did not expect this particular "bitch-slap" of bikers to come back to bite them, but, then, that's just the nature of Karma.)
Mr. Bianco was well aware that that portion of Buhl was in response to a constitutional challenge of the statutes, but was none-the-less satisfied that that portion of the Buhl court's decision supported his claim that CHP Bulletin #34 is without legal foundation, and the citations thereby generated are without merit, and otherwise unconstitutional with regard to notice as to what constitutes the "safety helmet" required in CVC 27803.
The original finding of the Bianco court was that the Superior Court decision was 100% correct, particularly with regard to its assertion that "Section 27803 makes it illegal to drive or ride on a motorcycle without a helmet that meets the federal standards," and further indicated that it was Mr. Bianco's mis-interpretation of the statute that was "absurd."
As the Bianco court soon discovered, however, it could not reconcile such a position (because it was absurd) with the reality of the Buhl courts decision, and subsequently modified its original opinion in an apparent attempt to reconcile the obvious disparity.
Although the decision was perceived as a loss by many who did not understand the legal issues involved, Mr. Bianco knew right away that in losing that appeal, he had actually won. It didn't take long for many others to figure it out either.
The Bianco court may not not have forced the CHP to recall their bulletin, as Mr. Bianco had requested; but, their modified opinion had essentially the same impact. Mr. Bianco had managed to blow a hole in the California helmet law you could drive a fleet of trucks through.
The Bianco decision reopened the door to a constitutional challenge for vagueness which the Buhl court had seemingly closed forever. For the bikers who were fighting the law in the courts, a light suddenly appeared at the end of the tunnel . . . a very bright light.
Prior to Bianco, the state of the law was such that, even though Buhl had ruled that the only requirement was to wear a helmet bearing a DOT sticker, the traffic courts were succumbing to the requirements of CHP Bulletin #34 and convicting bikers on a regular basis for violating the helmet law, in spite of the fact they were wearing a helmet with a DOT sticker.
However, the courts are now forced to accept the criteria for compliance indicated by the California Appellate Courts, as follows: (1) according to the Buhl court, "it is clear the law requires only that the consumer wear a helmet bearing a certification of compliance (a D-O-T sticker)"; and (2) according to Bianco, the Buhl court's "only" criteria "does not apply to situations in which there has been a determination of noncompliance" and it can be shown that "the consumer has actual knowledge of such determination" notwithstanding the opinions of the CHP.
If you are now cited on the basis of the CHP's illegal helmet theory, and are willing to defend yourself, the fact that the courts are bound by these decisions gives you solid ground on which to stand and fight. When the citing officer breaks out his evidence -- CHP Bulletin #34 or whatever -- all you have to do is break out the Bianco decision and question him with regard to his probable cause to believe either of the two required elements: (1) that there had been a "determination of noncomplaince" (whatever that is) on your particular helmet, and (2) that you had "actual knowledge" of such a thing, should it exist. If you somehow then lose at trial, it would take a judicial error bordering on misconduct, to ignore the Appellate Court cases on appeal.
In addition, and of much greater value to all of us, is the fact that the helmet law now hinges on the language of "actual knowledge" and "determination of noncompliance". Ultimately such language should be ruled vague and ambiguous by some higher court, which literally blows the doors off those hinges, opening the helmet law for a major constitutional attack . . . all due to the unique perspective, total dedication, and uncanny efforts of Mr. Steve Bianco (and his dog Spot).
p.s.: The Buhl v. Hannigan decision cost the motorcycle riding community at large over $60,000. The Bianco decision was funded almost entirely by Mr. Bianco, himself, and a handful of stalwart troops; with only limited support from . . . well, you know who you are and what you contributed.
Spot
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