|The information here come from the "Pocket Guide to Helmet Laws and Ticket Defense" Courtesy of Russ Brown, Motorcycle Attorney, Nationwide Legal Services. The Founder of Breakdown Assistance fro Motorcyclists.|
Helmet Law Defense
The following has been developed to aid in your defense when you have been stopped and ticketed for wearing an "unapproved" helmet. Read the following to the Judge as your defense and ask that the charges be dismissed.
YOUR HONOR, I was wearing a motorcycle helmet acquired in a good faith attempt to comply with the State's Mandatory Helmet Law. The helmet, at the time I acquired it, hat a "DOT" sticker on the back. Thus, I was improperly ticketed and the case should be dismissed.
THERE ARE TWO ISSUES IN THIS CASE THAT THE STATE MUST PROVE BEYOND A REASONABLE DOUBT
(1) The helmet I was wearing failed to comply with the Federal Law.
(2) I knew my helmet did not comply with Federal Law.
The State Mandatory Helmet Law has incorporated Federal Standards set forth in the National Traffic and Motor Vehicle Safety Act of 1966 and in the Federal Motor Vehicle Safety Standard ("FMVSS") No 218.
Section 1392 (d) of the Safety Act states that once a Federal Standard is adopted that federal standards has supremacy...the state may enforce no standards which are not identical to the federal standards.
The "DOT" sticker, on the back of the helmet, raises the presumption that the helmet meets Federal standards.
The Federal Law places the burden on the manufacturer and the seller of certification and compliance with the standards set forth by Federal law, "FMVSS" 218, and not on the user.
National Traffic and Motor Vehicle Safety Act of 1966, Section 1397(a)(1)(A)
(1) no person shall -
(A) manufacture for sale, sell, offer for sale, or introduce or deliver for introduction in interstate commerce, or import into the United States, any motor vehicle or item of motor vehicle equipment manufactured on or after the date any applicable Federal motor vehicle safety standard takes effect under the subchapter unless it is in conformity with such standards.
Under section 1403, the evidence of certification, with regards to helmets, is a "DOT" sticker in the back of the helmet, FMVSS 218 sect. 5,6 and 1(e).
Federal law only requires the exercise of due care by the user at the time of acquisition. National Safety Act of 1966, Section 1397 (b)
(2) Paragraph (1) (A) subsection (a) of this section shall not apply to any person who establishes that he did not have reason to know in the exercise of due care that such vehicle or item of motor vehicle equipment is not in conformity with applicable Federal motor vehicle safety standards, or to any person, who, prior such first purchase, holds a certificate issued by the manufacturer or importer of such motor vehicle or motor vehicle equipment, to the effect that such vehicle or equipment conforms to all applicable Federal motor vehicle safety standards, unless such person knows that such vehicle equipment does not so conform.
Therefore, Federal law only requires good faith compliance and the exercise of due care at the time of acquisition of the helmet. The "DOT" sticker raises the presumption of god faith compliance.
Federal law prohibits the Department of Transportation from establishing a list of approved helmets And, to my knowledge, there is no list of approved helmets available to the general public published by anyone.
The absence, at the time of the issuing of the citation, of a sticker on the back of the helmet is not evidence of a lack of compliance because Federal law does not require that the sticker remain on the helmet. (See NTMVS ACT of 1966 and FMVSS 218)
The state must prove beyond a reasonable doubt that my helmet does not meet MVSS 218 and that I was aware of this fact.
Proof that my helmet does not meet Federal standards requires expert opinion and actual testing of this helmet. A traffic officer lacks the personal knowledge of actual testing and lacks special knowledge, skill, experience, training or education regarding FMVSS 218 and testing procedures.
Expert opinion is not proper testimony unless my helmet was actually tested. To my knowledge there is no case law in this state to support the use of expert opinion without actual testing when a technical test is required by law to prove compliance with a standard.
If the state proves that the helmet did not comply with Federal standards, they still must show I knew the helmet was not in compliance at the time I got it. At the time I acquired the helmet, it possessed a "DOT" sticker on the back and, therefore, I acted in good faith and the State can not prove otherwise. Therefore, I respectfully requests that this case be dismissed.
|WARNING: BEFORE READING THESE ARGUMENTS TO THE COURT, BE SURE TO PLEAD NOT GUILTY. This defense will only work if you acquired the helmet with the "DOT" sticker on the back or on a label on the inside which indicated that the helmet complied with the "DOT" standards. If the helmet had a label on the inside, everywhere in the argument that it says "sticker on the back" insert the words "label on the inside."|
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