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Fighting Traffic Tickets

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Is a Chatterbox Legal?

A reader of mine got a ticket for having a Chatterbox communication device attached to his helmet - this allegedly constituted a "rigid protrusion" in violation of Federal Motor Safety Standard #218. I was asked for an opinion on the legitimacy of this ticket. Needless to say, I think the ticket is completely bogus.

Relevant laws:
http://www.nhtsa.dot.gov/people/injury/pedbimot/fmvss218.htm - the DOT specification.
http://www.nhtsa.dot.gov/cars/testing/comply/Mission/1_ovsc_1.html - DOT statement that certification is the manufacturer's responsibility.
http://www.dmv.ca.gov/pubs/vctop/d12/vc27802.htm - the definition of a "helmet" in California.
http://www.dmv.ca.gov/pubs/vctop/d12/vc27803.htm - the California helmet law.

What I told the poor guy:

I would fight that ticket. Most judges don't want anything to do with topics like this, they throw it right out. e.g. the guys on choppers riding with the illegal helmets, their tickets generally get thrown out as judges don't want to get into the position of deciding if something is DOT certified or not.

The DOT standards apply to companies manufacturing helmets, it's very unobvious that they apply to consumers. The relevant laws are 27083 and 27802. 27083 says you have to wear a helmet, of appropriate size, strapped on, which meets the requirements of 27802. 27802 says that no one may sell or offer for sale a helmet unless it meets FMSS #218, and is so labeled. There's nothing that says the helmet can't be modified. There's nothing that says clearly that the helmet must meet the specs when you're wearing it. In particular, helmets are known to age - the shells and liners become brittle, and the helmet no longer meets impact specs after a few years. There's no provision that says helmets must be reasonably new, or no more than X years old, or whatever. 27803 (g) makes it clear the legislature wants you safe - I would argue that the Chatterbox is a safety device allowing my passenger to communicate with me without wild gyrations that affect the balance of the bike. Further ,there's no clear duty on the helmet owner or user to verify that the device actually meets #218. I would argue that neither the cop nor I was competent to testify wether or not a particular helmet meet the specification, this would require an expert witness which the state, obviously, did not supply. If the DA asked the cop on the stand anything about 27802, I would immediately object on the grounds that it was asking the cop to offer expert testimony in a field where he was not certified as an expert.

Don't bring the chatterbox helmet to court. It's evidence for the cop. Ask him if he has the helmet. Ask why he didn't impound it. Ask if he took pictures. Ask why he let you drive away with it if it's unsafe, which puts him in violation of27803 (g). If he's a motorcycle cop, ask to see his helmet. Ask if the visor, which sticks out more than .2 inches, is dangerous. Ask if the visor snaps, which stick out more than .2 inches, are dangerous. Bring a 1/2 helmet to court and offer it to the cop if he doesn't have his own. Ask him to describe the chatterbox in minute detail, with special attention to the dimensions, and the placement on the helmet. Disagree with whatever he says. Have a piece of paper with you with the precise measurements of the chatterbox, and testify that the cop's testimony is inaccurate. Don't offer precise measurements, just testify that the cop is wrong. Ask if the Chatterbox was affixed with double stick tape, or if there were holes drilled in the helmet shell. Ask how he ascertained this for your helmet. Ask what the definition of a "rigid projection" is. Ask if he happens to have a BS or better in mechanical engineering or physics which might possibly make him eligible to be certified as an expert on what a rigid projection is. Ask if the chatterbox would shatter in a hypothetical crash, or if it would hold up as if it were, say, a solid block of steel. Ask if a thin plastic shell that would shatter on impact seems like a rigid projection. Ask repeatedly if he's been involved in helmet testing, or material testing, or anything like that. Allow that he's an expert on the law and safe driving practices, but point out that here he's moving beyond that and implicitly claiming to be an expert on helmet construction and testing.

You're looking for reasonable doubt on the questions of (a) do you have a duty to ascertain that the helmet meets DOTspecs, or is your duty discharged by buying a DOT helmet; (b) is the cop an acceptable expert witness on whether or not a particular helmet meets DOT standards; (c) is the cop an acceptable expert witness on whether or not a given helmet is safe;(d) is the law clear, or is it ambiguous (remember the helmet snaps). Say all these things in your summary to the court.

Judges do whatever they do, but I don't see that this projection nonsense is enforceable on a motorcycle owner, nor do I think a case can be made in court without an expert.

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How to fight a helmet law ticket

I'm not an attorney. This presumes you were wearing a helmet, but not a "legal" helmet. If you weren't wearing any helmet,I think you just bought a fine.

I think beanie helmets are only slightly better than wearing no helmet at all - these helmets are about 3% as safe as a DOThelmet. In order to protect your head in an accident, a helmet must be fairly thick. The thickness is the room necessary to give your head some stopping distance. Without the thickness, your head stops in almost no time and the forces become too large to survive. However, I strongly dislike helmet laws. I think people should have the right to commit suicide however they wish. So, here's how to beat a helmet law ticket.

From time to time, and over-zealous cop will write a ticket for wearing an "illegal helmet," by which he means these beanie helmets. Many people who have these beanie helmets have a DOT sticker on the helmet. If you don't have such a sticker, I recommend you get one and put it on your helmet, and claim in court that it was on the helmet at the time you were stopped.You should be able to get such a sticker at any chopper accessory shop. Don't bring your helmet to court.

Plead not guilty. Appear in court on your trial date. Be on time. Dress nicely, like you were going to your cousin's wedding. You are on trial, not your helmet, you. Basically you're on trial for not looking right. Don't give them the added evidence of showing up in torn greasy jeans and a dirty shirt. Don't wear any leather, don't wear a vest, and don't wear your colors. If you have long hair, wash it and tie it back. This stuff matters, don't think it doesn't. Don't think that the judge isn't allowed to consider this - he can consider any damned thing he wants, and he will. Don't give them anything for free.

Print out all the following documents, three copies of each, and bring them to court:
http://edocket.access.gpo.gov/cfr_2002/octqtr/pdf/49cfr571.218.pdf - the DOT specification.
http://www.nhtsa.dot.gov/cars/testing/comply/Mission/1_ovsc_1.html - DOT statement that certification is the manufacturer's responsibility.
http://www.dmv.ca.gov/pubs/vctop/d12/vc27802.htm - the definition of a "helmet" in California.
http://www.dmv.ca.gov/pubs/vctop/d12/vc27803.htm - the California helmet law.

Look at the following documents, if your helmet is shown as "PASS" you're home free.
http://www.nhtsa.dot.gov/cars/testing/comply/fmvss218/2182.pdf - 2003 DOT testing results. See if your helmet actually passed.
http://www.nhtsa.dot.gov/cars/testing/comply/fmvss218/2002s218.html - 2002 DOT testing results.
http://www.nhtsa.dot.gov/cars/testing/comply/fmvss218/2001s218.html - 2001 DOT testing results.
http://www.nhtsa.dot.gov/cars/testing/comply/fmvss218/2000s218.html - 2000 DOT testing results.

An attorney will want a couple hundred bucks to represent you. You have to decide if it's worth the money. If you're a bright guy and can speak well and keep your cool, you can probably do this on your own. If you clam up in public and have trouble talking, or if you tend to get mad and start arguing or yelling, maybe you should get an attorney. Your call. If you get an attorney, show him this document. You can go to your local Harley shop and ask where the local ABATE office is. They might help you. Unlikely, but it's worth a phone call. At your local chopper chop or Harley dealer they might be able to tell you about other people who have gotten this ticket and what they've done.

The cop has to show up to testify - if he doesn't show, you're off. If he does, he has to testify that you were riding a motorcycle, wearing a helmet, and that the helmet "obviously" doesn't meet DOT specs. As soon as he says "obviously," before he can finish the sentence, you object. The basis of your objection is that the officer has not been certified by the court as an expert witness in the field of helmet construction and certification. No matter how the DA tries to ask the cop questions about the construction or certification of your helmet, you object. Don't let him get anything into evidence other than that you were riding a bike, wearing some kind of helmet, and the cop pulled you over for no other reason and wrote you for the helmet.

When the prosecution is done grilling the cop, you ask the judge if the prosecution is done making their case. He'll ask the DA, and then say "yes." You then say, "The prosecution has not shown my helmet. They have offered no expert testimony on what the DOT test is. They have offered no expert testimony on which helmets are DOT compliant. They have offered no expert testimony on which helmets are not DOT compliant. They have offered no expert testimony on whether or not my helmet is DOTcompliant. They have not shown my helmet as evidence, nor have they shown any feature of my helmet that is lacking or sub-standard. I move for dismissal for failure to prosecute." Excellent chance the judge throws out the ticket right there.

If the judge doesn't throw it out, you have to cross examine the cop and testify yourself. When it's your turn to ask the officer questions, you start grilling him on the DOT spec - what is it? Ask if the cop has a copy of the DOT helmet specification with him. He doesn't. Ask if he's ever read the specification. He hasn't. Show the cop the DOT specification.Ask to have it entered into evidence. Give a copy to the judge, and another copy to the DA. Ask the cop if he's ever seen it before. Ask exactly which part of the law your helmet didn't meet. Ask how he determined this. Ask how helmets are tested? what is the testing mechanism? what are the specifications? who tests the helmets? If he tries to answer these questions in any technical fashion, like starts talking about dropping helmets with aluminum heads and accelerometers, ask where he learned this stuff. Ask the cop if he has an engineering degree. Ask if he has a copy of the DOT specifications with him.Basically, your job is to point out that these are highly technical engineering specifications, and the cop is not an engineer- if he was, he wouldn't be a cop. When you're asking the cop these questions, make certain he only answers your immediate question - if he tries to start talking about your helmet, ask the judge to make him stop. The cop will try repeatedly to point out that your helmet is thin, and DOT helmets are thick. Jump on him about this - ask if he measured your helmet's thickness. Ask if he measured his helmet's thickness. Ask exactly how thick a helmet has to be. If he answers, ask how he knows this. There's no DOT rule about how thick a helmet has to be. Ask if thickness is part of the DOT spec (it's not). Ask if liner material is part of the DOT spec (it's not). Ask if he can tell you the precise chemical composition of the "good" liners. Ask if he has your helmet. Ask why he didn't confiscate it for evidence. Ask if he has a picture. Again, don't bring your helmet into the court room, that just makes it available for the prosecution as a piece of evidence. Be certain to ask the cop if you were wearing a helmet.

You testify that your helmet has a DOT sticker, that it was sold to you as a DOT compliant helmet, that neither you nor the cop nor the motorcycle shop owner are experts in DOT helmet testing, that you bought the helmet to comply with the law, and that you believe you are in compliance with the law. Testify that you think your helmet is just as safe and just as thick as any other helmet. You also point out that no evidence has been given that your helmet is not in compliance expect for the spoken opinion of the cop, who is not an expert and not entitled to an opinion on how your helmet would perform in a DOT test.

After that, you're done. The judge will do what he does. Most judges will throw the ticket out, as they don't want to get into a big engineering argument about what is and what is not a DOT helmet. A few will jump on you just 'cause they can.That's it, it's a crap shoot. However, I think the odds are in your favor.