The Passage of A New North Carolina Law

On 19 July 2007, the North Carolina General Assembly ratified HB 563 which included a section requiring all riders and passengers on motorcycles to wear USDOT FMVSS 218 safety helmets as standard safety equipment. The Governor signed the bill into law and it becomes enforceable in January 2008.

This law was passed through political partisan maneuvers. Political partisanship nullified the reasoned decisions of informed committee members. Back-room political manipulations, designed to support special interests, were used to force party members to vote along “party-lines” regardless of the facts of the issue.

During bill consideration, the Judiciary Committee of the NC Senate reviewed the arguments and facts presented by both sides of this issue. The committee deliberated and determined that this was a bad law. The majority of the members of the committee voted to remove the section pertaining to FMVSS 218 compliance.

The section pertaining to FMVSS 218 compliance was placed back in the bill on the floor of the Senate Chamber with little debate and, no discussion of the facts presented by representatives of the affected citizens. In other words… this law is a Totalitarian Act being imposed on the citizens of North Carolina without our consent and in direct conflict with our expressed interests!

CBA NC Helmet Citation Defense

CBA/ABATE is not anti-helmet… we are pro-rider-choice. However, CBA/ABATE is adamantly opposed to any totalitarian act, and believes that it is important to continue this fight in the courts. In order to help citizens defend themselves against this abomination, CBA/ABATE of NC has formed the "Helmet Citation Defense Committee".

The purpose of this committee is to develop and disseminate information and materials to be used by individuals, in the legal battle in court against the increasingly more oppressive helmet laws of North Carolina. A special financial fund has also been established, to assist with organizational costs for legal counsel, materials, and procedures that may be involved in CBA sanctioned legal defense activities.

Assistance and Support are Available

The recently formed NC Helmet Citation Defense Project (HCDP) has leaped forward under the dynamic leadership of Chairperson Susan Huttman of the Hickory Chapter of the CBA/ABATE of NC. HCDP Team members are well prepared to assist and support fellow riders who receive a helmet citation and wish to present their own defense in court. Bear in mind… Team members are not lawyers, nor legal professionals; they are simply concerned bikers, preparing their own defense, who are willing to share their materials, knowledge, and experience with others of like mind.

Contact a member of your local CBA/ABATE chapter, or attend a local chapter meeting to share in the free information and see what CBA is doing for all bikers in NC. We hope your visit will help to encourage you to fight the citation in court.

North Carolina’s new motorcycle safety helmet law dictates the following:

The operator of a motorcycle, and all passengers thereon, must wear on their heads, with a retention strap properly secured, safety helmets of a type that complies with Federal Motor Vehicle Safety Standard (FMVSS) 218.

DOT FMVSS 218 is not a federal law, nor is it a construction standard. This manufacturer’s helmet-performance-standard was developed in the 1950's, is obsolete, unnecessary, fiscally irresponsible, and restricts the free enterprise system by reducing the need for industry to develop higher quality, more comfortable and safer helmets.

Compliance cannot be determined by visually inspecting a helmet. FMVSS 218 is an engineering performance standard, not a consumer compliance standard.

o Results of manufacturer certified helmet testing conducted by NHTSA between 1980 and 1994 reveal that 68% of the helmets tested failed.

o The most recent NHTSA test of 350 helmets revealed that 50 of these helmets also failed (15%). That means that, after intensive remediation on the part of the federal government, 15 out of every 100 helmets on the market (that are certified to meet these standards) are still non-compliant.

o When the DOT identifies non-compliant helmets, they do not issue a recall, nor do they follow-up on manufacturer’s recall

CBA/ABATE of NC suggests mandating compliance with FMVSS 218 standards requires citizens to comply with a law which is not only dangerous, but constitutionally vague, unenforceable, and violates the principles of due process guaranteed all citizens by the Constitutions of the United States and North Carolina.

It pays to fight the battle in the courtroom.

The state of North Carolina has established that the cost of a helmet violation is $100. The fine is $25 and the court costs are $75. The fine for a helmet violation for a passenger is $10… there are no court costs for passenger helmet-violations. If you appear in court to defend against the citation, and are found guilty, it still costs the same… However, if you challenge the citation and win, it costs you nothing.

We are not attorneys, however, in a CBA/ABATE independent review of the language in GS 20-140.4 (a) we find it to be unconstitutionally vague and, unenforceable.

According to the Supreme Court of the United States: “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 (1971)

Therefore, in order for a law to be constitutional, an average person of reasonable intelligence must be able to answer the following question: “What is Federal Motor Vehicle Safety Standard (FMVSS) 218, and how can I ensure that I comply with it?” Having reviewed FMVSS 218 criterion and procedures, we find that:

a) FMVSS 218 is a manufacturing standard understood only by engineers and the industry;
b) FMVSS 218 is not a consumer law;
c) The average person of reasonable intelligence cannot possibly ensure compliance, and;
d) Law enforcement officers are not capable of roadside testing of safety helmets to ensure compliance.
Therefore, on behalf of the motorcycling community of North Carolina CBA/ABATE of NC respectfully requests:

If you have been cited for a helmet violation, please take your citation to court and defend yourself against this vague, unenforceable, discriminatory and dangerous law. CBA/ABATE of NC has developed a team of freedom loving individuals who are willing to help you prepare for a court appearance.

Each CBA/ABATE chapter in NC is designating a chapter project liaison to manage materials, educate riders, and collect information from cited members and other riders in their communities who choose to pursue a defense against citations issued under the parameters of this oppressive law.

Members of the HCDP are scheduling presentations at CBA/ABATE chapter meetings, and will entertain invitations to meet with any motorcycle organization to, share ideas, materials, and help to coordinate your organization’s activities. However, please keep in mind the following:

The materials created by the Team were developed using legal arguments and materials that have demonstrated success in North Carolina Courts. The new law (requiring DOT FMVSS 218 compliant helmets) goes into effect in January. We are continually reviewing precedent setting cases from other states, and modifying our legal strategy as appropriate.

In the meantime, if you are stopped for a suspected helmet law violation, here are some things to remember:

1. Don't volunteer any information. Avoid chit-chat, as you may say the wrong thing.

2. Always refer to your headgear as a "safety-helmet".

3. Do not admit knowledge of committing any violation.

4. If questioned, tell the officer you believe your helmet complies with current NC law.

5. Ask the reason you were pulled over (articulable suspicion).

6. Ask the officer exactly how and why he concluded the helmet law had been violated.

7. If threatened with being detained; Ask what legal authority there is to prevent you from proceeding without a different helmet, and/or for impounding the bike – "Officer, would you impound my car or prevent me from leaving if my tailight was out?"

8. If the officer continues to detain you, Ask the officer, "Am I under arrest?"

9. Remember to be respectful and courteous. In the majority of traffic stops, the officer is just doing his job... enforcing the law.

10. As soon as possible, after departing the scene, pull over and write the details of the incident down. Call 919-662-6229 and report the incident.

To find out more about the Helmet Citation Defense Project and/or schedule a presentation for your motorcycle organization contact any member of your local CBA/ABATE chapter or contact Bill Starnes at: star1568@bellsouth. net.

To print flyers for distribution, visit the Chapter Resources page here:  http://cba-abatenc.org/resources.htm

It's YOUR lifestyle, YOUR decision, and YOUR Freedom.