THE HELMET LAW IN NEVADA: HOW TO HASSLE HARLEY RIDERS.

• Author: Barrick, Travis N.

1. INTRODUCTION

   The only thing that is clear about Nevada's Helmet Law is that it is not clear what constitutes an illegal helmet. It is very clear, based upon the current state of the "law" and its enforcement, that the Helmet Law is being arbitrarily applied in a consistently pretextual manner, predominantly against Harley riders.

2. THE HELMET LAW IN NEVADA TO DATE

   The Nevada Helmet Law was enacted in 1971. (1) The law has remained fundamentally unchanged since then. (2) Nevada Revised Statutes section 486.231, in its current form provides, in pertinent parts:

   1. The Department shall adopt standards for protective headgear and protective glasses, goggles or face shields to be worn by the drivers and passengers of motorcycles and transparent windscreens for motorcycles. 2. Except as provided in this section, when any motorcycle, except a trimobile or moped, is being driven on a highway, the driver and passenger shall wear protective headgear securely fastened on the head and protective glasses, goggles or face shields meeting those standards[.] (3) In August 1973, by way of Title 49 of the Code of Federal Regulations, section 571.218, the National Highway Transportation and Safety Administration ("NHTSA") first set forth the performance standards for protective headgear (the "CFR Standard") and the testing protocols to be administered by the U.S. Department of Transportation. (4) By way of Title 49 of the United States Code, section 30103(b), any state, including Nevada, is expressly preempted from having "a standard applicable to the same aspect of performance" as the Federal Motor Vehicle Safety Standards ("FMVSS") unless the state standard is identical to the Federal requirement. (5) Pursuant to the CFR Standard, manufacturers are required to self-certify helmets placed into the stream of commerce. (6)

   In 1971, by way of Nevada Revised Statutes section 486.231, Nevada enacted its Helmet Law, which required the Department of Public Safety to adopt standards for "protective headgear." (7) However, according to Title 49 of the United States Code, section 30103(b), the only standard that Nevada may enforce is the CFR Standard. (8)

   On March 30, 1994, more than twenty years after enactment of the Nevada Helmet Law, Nevada Department of Public Safety ("DPS") complied with Nevada Revised Statutes section 486.231(1) when it adopted the Nevada Administrative Code section 486.015, which provides, in pertinent part: "[t]he department hereby adopts by reference the regulations contained in 49 C.F.R. [section] 571.218, as those regulations existed on January 1, 1994." (9)

   During the twenty-three year period between the enactment of the Nevada Revised Statutes section 486.231 and the adoption of Nevada Administrative Code section 486, the CFR Standard, it is not currently known how many Helmet Tickets were issued by law enforcement agencies for a "non-compliant" helmet. Moreover, as shown below, since the adoption of the Nevada Administrative Code section 486 in 1994, none of the law enforcement agencies in Nevada have provided any training to their officers on any aspect of the CFR Standard. (10)

   Further, although Title 49 of the Code of Federal Regulations section 571.218 has been revised since 1994, the DPS has not updated the Nevada Administrative Code section 486 to conform to any such revisions. (11) Thus, the law enforcement agencies may only enforce the 1994 version of the CFR Standard. (12)

   In 2004, NHTSA produced a tri-fold flyer (the "NHTSA Tri-fold"), titled "How to Identify Unsafe Motorcycle Helmets." (13) The NHTSA Tri-Fold's stated purpose is to show "how to distinguish unsafe helmets from those that meet the Federal safety standard" and uses words such as "most," "in some cases," "sometimes," "normally," "generally," "may be a clue," "some," "for example" and "indicators." (14) The NHTSA Tri-Fold does not state that it has been officially adopted as the CFR Standard or that its contents have the force of law. (15)

   The NHTSA does not maintain a list of compliant motorcycle helmets. Instead, the CFR Standard establishes a self-certification process under which "the manufacturer... [certifies] that the helmet conforms to the applicable Federal motor vehicle safety standards." (16) All helmets manufactured and distributed under the self-certification process are deemed to be in compliance until a specific helmet is tested and fails the test. Penalties for violation of the self-certification process are borne by the manufacturer. The manufacturers' self-certification process does not require every helmet model to be tested before being placed into the stream of commerce. (17) It is the manufacturer who places the infamous Department of Transportation ("DOT") sticker on the helmet. The DOT sticker establishes the rebuttable presumption that the helmet is compliant. (18)

   The CFR Standard requires tested helmets to pass certain tests in order to be found in compliance. (19) Those tests include (i) impact, (ii) penetration, (iii) retention, (iv) configuration, (v) projections and (vi) labeling. (20) The CFR Standard does not prescribe the size, weight, color, or the exact minimum amount of the head which must be covered by the helmet. (21)

   Helmet testing is performed by private laboratories under contract with the NHTSA. (22) During the period of 2000 through 2008, the NHTSA published testing results which showed that over the nine year period, 356 helmets were tested, with an overall pass rated of 56 percent. (23) Because helmets are not required to be tested before being sold, every one of the helmets that failed the testing represented a specific model that had already been manufactured and already been placed into the stream of commerce. (24)

   A significant number of helmets tested during this period were "full-face" helmets, many of which failed the testing and were subject to a manufacturer's recall. (25) However, consumers or purchasers of these failed full-face helmets were not notified directly of manufacturer recalls and, thus, without knowledge of a manufacturer's recall, continue to use these helmets on a daily basis. (26) The only certainty regarding the compliance of any piece of protective headgear is that a helmet is non-compliant if and only if (i) it has been tested and (ii) it failed the test. (27)

   None of the law enforcement agencies in Nevada possess the means, equipment, training, or contractual relationships with any testing laboratory to effectively test any helmet in Clark County to definitively determine whether or not it complies with the CFR Standard.

3. ESTABLISHING THE PRESUMPTION OF ARBITRARY AND SELECTIVE ENFORCEMENT

   The law enforcement agencies in Nevada have never trained their officers in any aspects of the CFR Standard, including the factual basis upon which to determine compliance or non-compliance with the CFR Standard. They have failed to provide their officers with any list of helmets which have been tested and have failed the CFR Standard. They have failed to provide their officers with any training with respect to the collection of evidence necessary to support a Helmet Ticket. Namely, the law enforcement agencies failed to record the make, model, size and year of manufacture on the Helmet Tickets. Such evidence is essential to the factual determination of whether or not (i) a specific helmet is or is not compliant with the CFR Standard or (ii) a specific helmet has been tested and failed the CFR Standard process.

   On May 16, 1994, M.J. Zagorski, LVMPD Deputy Chief, speaking in his official capacity, stated in an Administrative Notice to "All Field Services Division Personnel," that:

   If an operator or passenger of a motorcycle is not wearing any protective headgear, they should continue to be cited for violating NRS 486.231. However, if a "skullcap" or other non-D.O.T. or D.M.V. approved helmet is being used, they should not be cited. (28) The stated reason for this directive was the following:

   NRS 486.231 has been interpreted by our legal advisor as: "Protective headgear or helmet is defined as a device primarily intended to protect the upper part of the wearer's head against a blow. It does not include a requirement that the helmet be D.O.T. or Nevada D.M.V approved. For this reason, Metro's officers should not be citing individuals for non-conforming equipment." (29) On April 3, 2002, Director Richard Kirkland, DPS, speaking in his official capacity, stated in an email to Richard Quigley: "I understand your issue and we WILL get to the bottom of this.... I dealt with the Helmet issue numerous times. We'll get the factual answer[.]" (30)

   On November 5, 2002, in response to a question posed by Colonel David Hosmer, DPS, the Nevada Attorney General issued its Opinion 41, which stated that:

   The absence of the "DOT" sticker is an indicator that the helmet docs not comply with the safety standards set out in the regulation. However, a helmet that is missing the "DOT" sticker, but meets the NHTSA standards, may still be legally worn.... The above-stated guidelines, however, only allow troopers and riders to make a preliminary assessment of the helmets. To determine with certainty whether a helmet complies with the federal and state safety standards, one must contact the manufacturer of the helmet listed on the sticker inside the helmet and the National Highway Transportation Safety Administration. (31) On November 16, 2002, Colonel David Hosmer, DPS, speaking in his official capacity, stated in an email to Richard Quigley, "I would be more than happy to testify at any [legislative] hearing that the current statute is unworkable." (32)

   On April 10, 2003, Colonel David Hosmer, DPS, speaking in his official capacity at the Nevada Senate Hearing on SB 274, stated:

   I am a public servant, my troopers are public servants, and we will enforce whatever you want. But we do have serious problems with the way [the Helmet Law] is currently written. It goes to CFR's which goes...