CHP and Helmets; Judge rules law unconstitutional

http://www.santacruzsentinel.com/archive/2006/August/18/local/stories/05local.htm

 

Xposting to reeky

But wait !! It gets better.

http://www.mercurynews.com/mld/mercurynews/news/local/15305930.htm

Superior Court Judge Michael Barton issued the ruling on Tuesday
in the case of Aptos resident Richard Quigley, 61. Quigley received
nine citations from Watsonville police and the CHP in 2003 and 2004
for violating the state's helmet law. On all but one of those
occasions
he was wearing headgear that was embroidered with the letters `DOT,''
a certification of compliance with federal Department of
Transportation
standards, according to Barton's ruling.

Embroidered with the letters 'DOT' makes it legal ? Gotta love it.

Only in Santa Cruz county.

 

"California's motorcycle helmet law has been declared unconstitutionally
vague by a Santa Cruz County judge because the California Highway Patrol has
not adopted adequate helmet regulations."

If the CHP did adopt 'adequate' regulations, the helmet law would still be
unconstitutionally vague. Last I checked anyway, wearing a badge did not
make one a legislator. Or, laws are not written by cops. So the highway
patrol can adopt any regulation they want to, and it wouldn't hold up in
court, unless backed by corresponding statutes that are on the books. -Dave

 

Only by judges ?

 

If the CHP did adopt 'adequate' regulations, the helmet law would still be

So what you are saying is that there is no way to make the statute clear
enough to pass Constitutional mustard. The CHP can make the regulation, but
they can't add it to the statute, so it's a catch-22 situation. If you go
to court for a helmet violation, ask what law you are accused of violating,
then point out that the law itself contains no specification or standard for
motorcycle safety helmets. If someone points out that the CHP make the
rules, object as irrelevant. You are either accused of violating a law, or
you have no business being in court at all. So if the specification isn't
codified by law, there is no case. -Dave

 

The judge is just saying that the law is too vague for him to apply. It's not his job to guess what
the legislature meant.

 

If we take a trip in the way back machine to British Columbia circa
mid to late 60's a court ruled the BC helmet law required riders to
use a CSA (Canadian Standards Association) approved helmet, but since
the CSA had never tested or approved any helmet the law could not be
enforced.

It didn't take too long for the Provincial Government of the day to
revise the law or for the CSA to test and approve most helmets.
--


Don
RCOS# 7
If Hezbollah was to lay down their arms
there would be no war.
If the Israelis are to lay down their arms
there would be no Israel

2000 - Yamaha Venture Millenium Edition

 

You can try the same trick to get out of speeding tickets,

Actually, that specific argument has been used successfully as a valid
defense, many times, in most states. How it works is this . . .

You get pulled over on a road that has been improperly posted as 35MPH. You
know it's improperly posted, as no traffic study was done before the speed
limit was lowered from the state 'default' speed of 55MPH. Oh, and many
states require a traffic engineering study of some kind before lowering the
speed limit on any particular road, so any speed limit sign posted WITHOUT
the supporting traffic study is not enforceable. You get ticketed for
50/35. You request access to the traffic study showing that the road should
be posted at 35MPH. You find that (as you already knew) no such study
exists. In court, you simply tell the judge that the 35MPH sign is wrong,
and that the speed limit in the area is 55MPH, and you were indeed driving
50MPH, just as the cop claims you were. At that point, the charge is
dismissed. This is not theoretical, it happens quite often.

UNFORTUNATELY, this almost never leads to the improper SL sign being taken
down or changed to reflect the actual speed limit in the area, so there is
still a road posted 35MPH that has an actual (read: legal and enforceable)
speed limit of 55MPH. Oh, and many more people will be ticketed for driving
LESS than the speed limit, and most of them will just pay the illegal tax
bill.

See, the more you know about the law, the less likely you are to get screwed
by it. If someone accused me of violating a helmet law when no requirement
for a helmet was specifically codified IN the law, I'd argue that someone's
opinion (such as CHP) of what I should be wearing is irrelevant, and I would
have the law on my side. That doesn't mean I wouldn't get screwed anyway by
having the judge rule against me, but the judge would have to ignore the law
and/or trample all over the defendant's rights, to rule against me. -Dave

 

So what you are saying is that there is no way to make the statute clear

Perfectly clear, only if you count "no specifications" as perfectly clear.
That's about as clear as mud though. -Dave

 

Fail as badly as what ???

Seems to me the dude walked in this case.

You figure CHP is going to appeal ?

Personally, I'm just overcome with moral indignation that he
got away with it. Oh the shame of it all.

 

No problem, sir. Our special today is a 44 ounce Coke and hot dog for
$2.50. You want to upsize? -Dave

 

OK, but what you just wrote disagrees with the judge's ruling. How do you
reconcile that? The law was ruled to be UNConstitutionally vague. No
matter how hard the CHP tries, they can not change that, even if they
supposedly have the authority to create regulations. -Dave

 

Interesting point, but you point to a different kind of case -

I don't see that case as being different, at all. Someone was arguing that,
by statute, the CHP had a right to specify what type of helmet should be
worn, and I'll concede that point. But, the CHP failed to do so in any way
that would pass judicial review. Essentially, this means that the LAW
(STILL!) states that any helmet you wear is optional equipment.

On a side note, this CA helmet law seems about as judicially valid as the
old Montana R&P speed limit. They both have the same fatal flaw, in that
they allow the policeman to decide on the roadside what is legal or not
legal. Cops don't make law, so any law specifying that the cop can decide
what is legal or not is doomed to (eventually) fail. Thus Montana now has
speed limits again, as cops are not paid to think, and do a horrible job of
it when they try to do so. I imagine this will work out eventually that the
law will be amended to take the regulating authority away from the CHP,
regarding motorcycle helmets.

Theoretically, the CHP could pull a regulation out of their ass tomorrow,
and it still would be UnConstitutionally vague. I mean really, what
definition would NOT be too vague? -Dave

 

Per the murky news,

CHP officers cited him despite the headgear because it did not
**look** like a traditional helmet.

``The only evidence offered against the defendant . . . were
complaints by the prosecution that the headgear looked like
a `typical baseball cap,' '' Barton wrote in his ruling.

Quigly claims he was wearing a "helmet" but did he really
believe it ?

 

Seems most likely, you'd lift criteria from DOT specs and then
add some more gobbledygook about helmets having to be
certified to meet these criteria.

Doesn't really look any more difficult than writing emissions
or safety requirements.

Governments have never failed to pull requirements out of
their ass in the past. I wouldn't the well running dry any time soon.

 

Nothing vague about it at all. DOT-approved helemets are

You are aware that the DOT doesn't approve helmets, and that the DOT doesn't
contract others to approve helmets for the DOT, either.

Right?

If the law is as you say it is, it is impossible to comply with, as there is
no such animal as DOT-approved helmet. -Dave

 

And there's the fatal flaw. The law will never pass judicial muster, as it
depends on cops to think, and cops do not do that well. See Montana and
their R&P speed law for more information. -Dave

 

I'm not sure what that is, but the law does pass Constitutional muster.

The CHP will appeal the ruling to a higher -- I mean a superior judge.
(I wonder whether a judge can be more high than that one.)

 

Certified by whom, though? DOT doesn't test helmets, and they don't
contract others to test helmets for the DOT, either. I could literally make
my own helmet tomorrow, put a DOT sticker on it, and it would be legal in
most states. WHO could prove me wrong? According to the way the laws are
written, nobody. -Dave

 

I don't see that case as being different, at all. Someone was arguing that,
by statute, the CHP had a right to specify what type of helmet should be
worn, and I'll concede that point. But, the CHP failed to do so in any way
that would pass judicial review. Essentially, this means that the LAW
(STILL!) states that any helmet you wear is optional equipment.

On a side note, this CA helmet law seems about as judicially valid as the
old Montana R&P speed limit. They both have the same fatal flaw, in that
they allow the policeman to decide on the roadside what is legal or not
legal. Cops don't make law, so any law specifying that the cop can decide
what is legal or not is doomed to (eventually) fail. Thus Montana now has
speed limits again, as cops are not paid to think, and do a horrible job of
it when they try to do so. I imagine this will work out eventually that the
law will be amended to take the regulating authority away from the CHP,
regarding motorcycle helmets.

Theoretically, the CHP could pull a regulation out of their ass tomorrow,
and it still would be UnConstitutionally vague. I mean really, what
definition would NOT be too vague? -Dave[/QUOTE]

You mean like this one?

http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=94155916100+0+0+0&WA
ISaction=retrieve

CALIFORNIA CODES
VEHICLE CODE
SECTION 27800-27803

27802. (a) The department may adopt reasonable regulations
establishing specifications and standards for safety helmets offered
for sale, or sold, for use by drivers and passengers of motorcycles
and motorized bicycles as it determines are necessary for the safety
of those drivers and passengers. The regulations shall include, but
are not limited to, the requirements imposed by Federal Motor Vehicle
Safety Standard No. 218 (49 C.F.R. Sec. 571.218) and may include
compliance with that federal standard by incorporation of its
requirements by reference. Each helmet sold or offered for sale for
use by drivers and passengers of motorcycles and motorized bicycles
shall be conspicuously labeled in accordance with the federal
standard which shall constitute the manufacturer's certification that
the helmet conforms to the applicable federal motor vehicle safety
standards.
(b) No person shall sell, or offer for sale, for use by a driver
or passenger of a motorcycle or motorized bicycle any safety helmet
which is not of a type meeting requirements established by the
department.