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Ask Our Lawyer - October 2008

Stuck on Helmet Stickers

Q: Recently I had a serious accident. A car turned in front of me and I ended up clipping the front of the car. There's damage to the motorcycle and fortunately, I escaped with sore ribs, neck, and lower back, but nothing serious. The Michigan State Police came and did their investigation and determined I was not at fault. Then they promptly wrote me a ticket for use of an unauthorized helmet, citing no DOT sticker on it. I am not certain I exactly know what an authorized helmet is. Do I have a chance if I fight this ticket? – A.B.A.T.E. member

A: Since 1974, motorcycle helmets are required to meet the minimum requirements established by the Federal Motor Vehicle Safety Standard 218 (FMVSS 218), which contain the guidelines and test criteria a helmet must pass to receive “DOT” approval. Approval is indicated by “DOT” stickers on the back of the helmet and inside the helmet.

States which have helmet laws generally require that helmets meet the DOT standard, which means that they have incorporated those criteria by reference. If the helmet does not have the DOT stickers, it is considered a novelty helmet and you can be ticketed for it. However, the Michigan law does not specify in the statute what criteria should be used. The statute reads:

Section 257.658(4) - Crash helmets shall be approved by the department of state police. The department of state police shall promulgate rules for the implementation of this section . ... .

Therefore, we turn to the Michigan Administrative Code, which states, in Rule 28.951,

Rule 1. Motorcycle helmets shall meet the model specifications established by the United States Department of Transportation, National Highway Traffic Safety Administration. These specifications, located at and identified as “Motorcycle Helmets,” 49 C.F.R. §571.218, published April 15, 1988 in the Federal Register (53 FR 12529), effective October 3, 1988, are adopted in these rules by reference.

The section of the Code of Federal Regulations referred to is the section which details the DOT requirements for helmets. Therefore according to statute and rule in Michigan, the law requires that motorcyclists wear DOT approved helmets, and the ticket will, sadly, most likely stand.

Local Government in Illinois after ATVs Again
– Pay Attention - this May Happen in Your State

Those of you with long memories will remember we reported on an effort in Rockford, Illinois to impose additional regulations on ATVs back in 2005. The good folks in Rockford thought better of it, but it seems like East Peoria didn’t get the message. Motorcyclists need to make a stand now or else we will find cites and towns passing laws picking on motorcyclists next, like no motorcycles after 6:00pm, special motorcycle speed limits, no motorcycle parking, etc.

The busybodies are still at it. Recently, A.B.A.T.E. member Hunter John contacted A.B.A.T.E. Legal Services and asked whether the city of East Peoria can impose operating limitations on ATV operators on private land, when those limitations are more restrictive than the limitations set forth in the Illinois Vehicle Code (625 ILCS 5). The relevant section of the Vehicle Code states that an all-terrain vehicle or off-highway motorcycle cannot be used:

(h-3) Within 100 feet of a dwelling between midnight and 6 a.m. at a speed greater than the minimum required to maintain forward movement of the all-terrain vehicle or off-highway motorcycle. This subdivision (h-5) [sic] does not apply on private property where verbal or written consent of the owner or lessee has been granted to drive or operate an all-terrain vehicle or off-highway motorcycle upon the private property or frozen waters of this State.

Seems pretty clear. East Peoria is now considering an ordinance, (§10-1-7.15 (k)) which reads:

(k) Distance from dwellings. Except as provided in subsection (o), no person shall operate any all terrain vehicle or off-highway motorcycle within one hundred (100) feet of any dwelling, unless permission to operate the all-terrain vehicle or off-highway motorcycle within one hundred (100) feet of the dwelling has been given by the owner of such dwelling.

In other words, East Peoria’s ordinance is more restrictive than the Illinois Vehicle Code because it restricts operation 24 hours a day instead of between midnight and 6 A.M. It also requires the permission of the owner of a neighboring dwelling instead of allowing a tenant to give permission.

So, can East Peoria (or any other municipality) do that? Probably not. §§11-207 & 11-208 of the Vehicle Code state the general limits of local power to regulate in areas covered by the Vehicle Code. The most important limitation is this statement in §11-207:

The provisions of this Chapter shall be applicable and uniform [emphasis added] throughout this State and in all political subdivisions and municipalities therein, and no local authority shall enact or enforce any ordinance rule or regulation in conflict with the provisions of this Chapter unless expressly authorized herein.

This language clearly shows that the General Assembly intended that vehicle regulation should not be a crazy-quilt patchwork of dissimilar regulations. East Peoria’s ordinance is clearly inconsistent with the limitations in §11-1427(h-3) of the Vehicle Code. Accordingly, the ordinance is prohibited by §11-207 of that statute.

Also, there is a doctrine in the law called Preemption. Here is how it is supposed to work: a higher element of government, whether state or federal, elects to pass laws regarding an area of the law for which it is responsible. But the question is: what happens when a smaller unit of government (a city) decides on its own that it does not like what the State has done and starts passing laws it thinks are better than what the state has passed. To eliminate the chaos that would follow, the law created this doctrine called “preemption,” which in essence provides that when the larger unit of government (state) passes laws to control activity in a certain area, the city should give way and not pass laws that conflict with the state laws. Such is the case in East Peoria. The State passed specific laws regarding use of off-road vehicles, and East Peoria should not seek to create chaos.

Seatbelts and Tickets

Q: How would a person go about rescinding the seat belt law? My son was harassed last night by state police for not wearing his seat belt properly (not fully on his shoulder), even though he was asleep in the back seat while car-pooling to work. My wife has been stopped twice by the state police for wearing her shoulder strap under her arm while recovering from breast cancer. I believe these officers are only concerned about revenue from tickets and using the law without compassion or common sense.

A: I agree with your sentiments. If tickets were issued, your wife’s breast cancer would offer some mitigation and I would fight that ticket, especially if she has a doctor's letter. As to the shoulder strap issue and your son, that is a tougher fight.

The ability to rescind the seat belt law is up to the legislature and congress. The seat belt law is so well settled that I am not hopeful of a judicial remedy. Only an Act of Congress gets us off that hook. Or, you could do as I do and drive a vehicle made prior to the seat belt law. It is a great feeling driving down the road in my '59 Ford truck with no seat belts knowing the cops can't do a thing to me – I’m exempt.

Club Member Questions Club

Q: I belong to a good size truck club. We have been around several years. A few years ago, the major part of us decided it would be great to raffle off a car or truck to raise a few bucks. Several years have passed, and the treasury has grown a fair amount, even though we remain a “non-profit organization.” In recent years, they have found out that if they advertise that the money goes for some great cause like “kids Christmas” or “seniors on a fixed income,” the people really open up the purse strings.

Our group does not get a permit from the state gaming commission, and only use a small portion (maybe 10 %) of the money received for their pet projects. When they are ready to do their project at Christmas, they go around and ask for donations outright. Any money they are short when the project day arrives, they get from our treasury. I try to distance myself from these “fund raisers” as much as possible (I do not sell any tickets or raise any money for them, just pay my dues). They also encourage outsiders to sell raffle tickets, and help raise money.

My question is, am I at all liable for any laws they violate while action as a club member? What, as a club, are we at risk of losing if they don't straighten up and go by the book? The club owns a few pieces of property, including a few club vehicles, a club house, a storage building, and some ground. I don't want to leave my friends of many years, but I don't want to have any personal liability either. Thanks a lot.

A: The club is exposing itself and its officers to significant legal and financial liability. The club and its assets are exposed to any civil judgment or criminal fines, and the officers are liable for any criminal violations committed by the club. Additionally, if the club officers are knowingly violating any laws, they may be personally liable for the club’s actions and losses. In short, the club and its officers are in a very dangerous position, especially if they are knowingly violating state law, or misrepresenting the purposes or uses of their fundraising. The club should get legal counsel immediately to review its programs and advise what actions may be necessary to get back on the rail. You did not say whether the club was incorporated or merely an association. While your status as simply a member reduces your exposure, it does not eliminate your potential for problems. While government enforcers usually go on lighter on do-gooder clubs, you can’t count on that for relief. If the club does not get its act together, I would get out of the club.

 

Ride Safe and Free,

Rod Taylor

A.B.A.T.E. Legal Services

If you have any questions you would like to ask the lawyer, please submit them to: Ask Our Lawyer, P.O. Box 2850, Indianapolis, Indiana 46206_2850, or email rodtaylor@abatelegal.com. © 2005, A.B.A.T.E. Legal Services

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