By Ray Henke, a motorcycle accident lawyer and member of Bikers of Lesser Tolerance, California

Freedom fighters joined to form BOLT of North Carolina and are currently bringing nonviolent civil disobedience and constitutional court challenge to the streets and courts of the state in response to the enactment of North Carolina’s new helmet law.

The North Carolina helmet law, which went into effect on January 1, 2008, is the same law that NTSB is recommending to state legislatures nationwide, with the insurance industry and medical lobbies throwing their weight behind the NTSB recommendations. The law requires motorcyclists to wear helmets compliant with the federal motorcycle safety helmet standards set forth at FMVSS 218. The North Carolina law, and all other state laws requiring riders to ride with helmets that meet FMVSS 218 plainly are incapable of being understood by the ordinarily intelligent person, and are certainly incapable of being applied, except incompetently, subjectively, arbitrarily, and discriminatorily by law enforcement officers. FMVSS 218 is just a list of laboratory procedures and arbitrary impact criteria. You have to be an engineer to understand it, and you have to have the laboratory equipment to apply it. Such laws are unconstitutional because the due process clause of the United States Constitution requires that law be comprehensible specifically so that the citizenry can know what is prohibited, and to avoid arbitrary and discriminatory application of the law by police and the judiciary. You are invited to learn more about the motorcycle lawyers perspective on the Constitutional defects in helmet laws.

The BOLT of North Carolina freedom fighters refuse to be constrained by this unconstitutionally vague legislation. They are holding protest rallies all over the state with a frequency and drawing numbers of bikers refusing to abide the law that has not been witnessed anywhere in the United States in decades. They have sponsored already over a dozen helmet protest rides, in which the riders make their own choices whether to wear helmets. And if they ride with helmets, they make their own choices as to the kinds of headgear they wear, undeterred by North Carolina’s attempt to force them to wear the riding hat specified by this new state biker dress code. The BOLT of North Carolina riders have been joined in their protest by individual bikers numbering over 500, angered by the state’s intrusion upon their freedom, coming from all over North Carolina. According to the Director of BOLT of North Carolina, Janice MacKay, “The next acts of civil disobedience in North Carolina are the 2nd Annual East Coast Helmet Protest on May 18th, followed by the Maggie Valley Freedom Ride on NC Bikers Freedom Ride Day, June 12th, and the WNC Freedom Ride in Asheville from Buncombe County to Henderson County on June 21st.”

It is expected that BOLT of North Carolina will also hold a freedom ride “in solidarity” with BOLT of California, and ABATE of California, organized by BOLT member, Red Barron. Two years ago the San Diego police laid in wait for the participants, setting up roadblocks and issuing helmet tickets. This past year, the police stayed their distance. Similarly in North Carolina, notwithstanding the threats of law enforcement to strictly enforce the new helmet law, Ms. MacKay reports that it is difficult to obtain a helmet ticket without riding back and forth outside the state police headquarters in Raleigh.

If North Carolina will rise to the challenge to enforce the law, BOLT of North Carolina hopes to clog the traffic courts at an average cost to the state of $872 per helmet citation trial, also requiring the law enforcement officers to appear and explain upon what incompetent basis they issued the tickets, providing the evidentiary basis for the initial constitutional challenge that the FMVSS 218 based law cannot be understood by the biker or cop and therefore is unconstitutionally vague.

At the same time, BOLT of the North Carolina is active in the legislature, with a no compromise helmet law repeal bill recently drafted and distributed to all North Carolina legislators by Jan MacKay. BOLT is also actively opposing the Street Gang Act and other legislation often employed by law enforcement arbitrarily and discriminatorily against bikers who chose to wear colors.

This article is provided by Ray Henke, a California lawyer, founder of Motorcyclists Against Dumb Drivers, and co-moderator of Bruce & Ray’s Biker Forum, also a member of Bikers of Lesser Tolerance, and contributor to Biker, Born to Ride and Thunder Road magazines.

By Ray Henke, a Motorcycle Accident Lawyer, Biker Rights Advocate and founder of Motorcyclists Against Dumb Drivers

The objective of our motorcycling community should be first and foremost to attempt to increase our safety on our American roads and highways. The solution is first to identify the principle causes of motorcycle accidents, and then to arrive at means to reduce the incidence of motorcycle accidents resulting from those causes. What the largest study of motorcycle accidents demonstrates is that two-thirds of all motorcycle accidents result from the inattention and negligence of auto drivers, two-thirds of that number, or fifty percent of the total resulting when the auto driver pulls out from a side street into an intersection or turns left at an intersection into the motorcyclist’s right of way.

The solutions to auto driver inattention and negligence involve legislation, motorcycle awareness programs and education, meaning specifically, auto driver education on how to drive safely for the protection of motorcyclists. The type of legislation that motorcycle groups have been able to obtain in many states to address specifically this most common type of motorcycle accident include ROWV laws, meaning “right-of-way violation laws,” providing more serious penalties, preferably long drivers license suspensions, where a driver injures a motorcyclist in an accident resulting from the auto driver’s having violated the rider’s right of way.

Many motorcyclists are aware of “Motorcycle Awareness” programs, now given at least some attention by State Governors proclaiming May as Motorcycle Awareness month. But there is much more that must be done year long. Every city and town should place permanent “Please Watch for Motorcyclists” signs at even just a few key intersections given that intersections are the location where these most common of motorcycle accidents occur. There are a growing number of cities that are doing this. But much more should be done given the seriousness of this motorcyclist safety issue. You can read more about what can and should be done at Motorcyclists Against Dumb Drivers but most importantly we need to provide auto driver education opportunities specifically to inform auto drivers about what they need to do for the protection of their “two-wheeled friends.”

One example is to modify the DMV booklets that auto drivers review in preparation to take the written examinations to obtain and renew their auto drivers licenses. The booklets should contain comprehensive information about motorcyclist safety, the most common ways that auto drivers endanger motorcyclists, and how best to adapt their driving for the protection of motorcyclists, for example, by specifically looking for oncoming motorcycles before entering or turning left at intersections. The booklets should also go into turning around to look into their rear view mirror blind spots, and the disparity of motorcycle breaking distances compared to those for autos of different sizes to reduce rear-end motorcycle accidents.

In addition, we would hope that the states would take the opportunity to similarly educate auto drivers by making motorcycle safety a significant part of the curriculum in all high school and other driver instruction programs, as well as in all voluntary or court ordered driver education programs, such as those offered in most states for drunk drivers or drivers seeking to avoid a traffic ticket point on their driving records, and we would urge specifically for those convicted of any right-of-way violation.

Thank you for considering these motorcycle safety proposals. I hope that when these matters come up in your state that you will consider writing to your state legislators to let them know of your informed opinion.

This article is provided by Ray Henke, a California lawyer, founder of Motorcyclists Against Dumb Drivers, and co-moderator of Bruce & Ray’s Biker Forum, also a member of B.O.L.T. Bikers of Lesser Tolerance, and contributor to Biker, Born to Ride and Thunder Road magazines.

Quigley vs. CHP, the Constitutional Case Poised to Bring Down the California Motorcycle Helmet Law

By Ray Henke, Esq., Motorcycle Lawyer, Member, Bikers of Lesser Tolerance, California

As Don Blancet, Executive Director of ABATE of California, observed in a press release disseminated by the Motorcycle Riders Foundation, he expects that the Quigley v. California Highway Patrol case will pound the final nail in the coffin of the California helmet law.

The constitutional defect in the California helmet law, and that which the NTSB has recommended to all states, is that these laws require motorcyclists to wear helmets compliant with the federal motorcycle helmet performance standard, FMVSS 218. The defect is that neither the bikers nor the law enforcement officers could possibly have any clue what FMVSS 218 requires.

Section 218 states nothing about what a helmet should look like or what it should be made of. It merely describes some laboratory procedures and some arbitrary impact criteria. And to determine whether a particular helmet complies with FMVSS 218 requires the essential laboratory equipment and appropriately trained engineers to operate it; and in the process of testing the helmet you also destroy it.

The constitutional defect is the law’s “vagueness” and the legal challenge derives from the due process clause of the United States Constitution. As explained by the United States Supreme Court:

“It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis with the attendant dangers of arbitrary and discriminatory application.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1971). Read more as California lawyers discuss the Constitutional attack on the California helmet law

The road to demonstrate that the California helmet law is unconstitutional has been a tortuous one, beginning with a challenge that the law was unconstitutional as written. In Buhl v. Hannigan, the California Court of Appeals agreed that it was “absurd” to posit that the ordinary biker or law enforcement officer could examine a helmet’s fabrication and apply FMVSS 218 to determine if it complied with the California helmet law. The Buhl case was followed by Bianco v. CHP wherein the California Court of Appeals held that if a helmet bears a “DOT” label it creates a presumption that the helmet complies with FMVSS 218, and that the presumption can be rebutted only if (1) the helmet was recalled by the manufacturer or determined by NHTSA to be noncompliant with FMVSS 218, AND (2) the biker as “actual knowledge” of a recall or determination of noncompliance.

At this point California law enforcement should have recognized that the constitutional restraints on application of the law had rendered it unenforceable. The California Highway Patrol’s response to the Court of Appeals decisions, however, was to ignore them.

Richard Quigley and Steve Bianco then initiated litigation which would later be funded by Easyriders magazine. The federal district court issued a scathing opinion condemning the CHP for its illegal helmet law enforcement polices and the United States Court of Appeals affirmed an injunction ordering the CHP to cease issuing helmet tickets unless the officer has “probable cause” to believe that the rider has “actual knowledge” that his headgear has been recalled or determined by NHTSA to be noncompliant with FMVSS 218.

Again, the CHP should have just laid down their ticket books, but again, the CHP determined to continue on with its illegal enforcement policy. Riders with Bikers of Lesser Tolerance in California tested the resolve of the CHP, accumulating hundreds of helmet tickets, some for wearing the B.O.L.T. “Ill Eagle” baseball cap helmet, with the Chinese manufacturer’s “DOT” label embroidered on the back, others wore sunglasses with DOT labels, or itsy bitsy teenie weenie helmets, and many manufactured their own smaller-than-watermelon-sized hard-shell helmets appending their own DOT labels.

Suffering from terminal lymphoma, Quigley challenged his last dozen helmet tickets, and ten years to the day after the United States Court of Appeals for the Ninth Circuit had upheld the injunction against the CHP’s illegal helmet law enforcement policies, the Santa Cruz Superior Court found that the CHP had engaged in a pattern and practice of illegal helmet law enforcement, now not only in violation of the California Court of Appeals decision in Bianco, but also in violation of the Easyriders federal court injunction. The Court issued a highly reasoned constitutional opinion holding that the California helmet law was unconstitutionally vague as applied.

As the transcripts reflect, the Court’s purpose in setting forth its reasoning was to permit the case to be taken up to the Court of Appeals. However, the California AG, less concerned with upholding the United States Constitution than with preserving the ability of the CHP to continue to enforce the helmet law illegally, declined to appeal the case.

The instant litigation was initiated by Quigley as an injunction/declaratory relief case to assure that the record will reach the Court of Appeals.. Win or lose in the trial court, we will have the opportunity to present our constitutional arguments to the California Court of Appeals where we hope to create the case law that will both put an end to the California helmet law and provide the template and precedent for other freedom fighters to use to overturn helmet laws throughout the country.

Ray Henke is a California motorcycle accident lawyer, former Governor of the Los Angeles Trial Lawyers Association and LATLA’s nominee for the “Trial Lawyer of the Year” Award. Mr. Henke served as legal consultant to Richard Quigley. He is a made member of B.O.L.T., and currently, B.O.L.T. of California, legal advisor. He also co-moderates Bruce & Ray’s Biker Forum.