Download this article as an MS Word document HERE. It becomes a handy one-page, both-sides paper you can hand out to friends or mail to legislators, judges, newspaper editors and newspaper writers. This article appeared in the October 2001 issue of the Michigan Rider and the October 2001 issue of the Michigan Motorcyclist.

You just took delivery on your new bike and since Michigan has a mandatory helmet law for everyone regardless of age or experience, before you ride, you gotta go out and buy a helmet. So you're back at the dealership and you see all of the shiny, new helmets on the rack. They all look pretty but which one do you buy? Since it's the law, let's check the law.

Current Michigan Law says...

Current Michigan law MCL 257.658 states, in part: "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 pursuant to the administrative procedures act of 1969, Act No. 306 of the Public Acts of 1969, being sections 24.201 to 24.315 of the Michigan Compiled Laws."

When the state legislature says shall, it means must. So the sentence really says: Crash helmets must be approved by the department of state police.

OK. No problem, right? You figure that since the department of state police must approve helmets then they must either test helmets themselves or have someone else do it but, at the least, they should be able to provide you with something (a list?) so you could go out and buy a helmet and comply with Michigan law. That's not too much to ask.

Somewhere, somehow you find out that the point man for the Michigan State Police (MSP) on the motorcycle helmet issue is Sgt. Thad V. Peterson, Traffic Services Section, Special Operations Division. So you email him for a list of approved helmets and you get an email back that begins with "All helmets meeting the requirements of the amended administrative rule are approved for use on Michigan roadways. There is no compiled 'list' of approved helmets." Huh?

It's been left up to you to figure out, but you're a reasonable person. So what's an approved helmet?

What's an approved helmet?

Prior to July 2000, the MSP had never approved a single helmet. Why? They were charged with doing so by the Michigan legislature since the early 1980s. ABATE of Michigan challenged the law in District courts around the state when some of its members were ticketed for no-helmet (See 1, 2, 3, 4, 5). Turns out that Michigan Courts agreed with ABATE that the helmet law was unenforceable (1, 2, 3, 4, 5). Even local police departments stopped writing tickets (1, 2, 3).

District prosecutors panicked while the MSP said that ABATE found a loophole in the law but in fact, there was no loophole. The MSP had never properly implemented the law. Faced with overwhelming evidence of non-compliance, the MSP found their own loophole. The next sentence of MCL 257.658 (4) states, in part: "The department of state police shall promulgate rules for the implementation of this section..."

So, on July 27, 2000, the MSP sent this fax to all Michigan law enforcement agencies to announce a new rule. The first paragraph of the fax says: "The rule, number R28.951, adopts by reference the U.S. Department of Transportation (DOT) standards for the approval of motorcycle helmets. Only a helmet model certified by its manufacturer as DOT-compliant is approved for use on Michigan highways." Rule 28.951 also has some tips at how to tell if a helmet might or might not have been approved - you can't tell just by looking. Confusing? You bet! And you're just an ordinary Joe trying to obey the law and buy an approved helmet.

The MSP has adopted federal standards but have they approved a helmet? Federal standards - FMVSS 218 (1, 2) - only deal with the way a helmet should be tested. You read the new rule and see that Section 257.658 (4) still states: "Crash helmets shall be approved by the department of state police." Using the new rule, if a manufacturer certifies a helmet is DOT-compliant, they say, then it's approved for use on Michigan highways.

But who checks the manufacturers?

The National Highway Traffic Safety Administration (NHTSA) does. They have a web page - Compliance Testing, Motorcycle Helmets FMVSS 218 - where they've got their own helmet test results from 1994 to 2000. Your search is over; you've finally struck paydirt.

But as you go through the pages of helmet models and test results on the NHTSA site, you realize you still don't know.

Year	Helmets tested	Pass	Fail
2000	40	18	22
1999	40	24	16
1998	40	21	19
1997	41	22	19
1996	167	53	114
1995	168	42	126
1994	199	52	147

You find out that helmet-testing is the sole responsibilty of the manufacturer. In the summary of NHTSA's Office of Vehicle Safety Compliance, Compliance Testing Program it states, "A FMVSS self-certification program exists in the United States. The NHTSA does not certify that vehicles or items of motor vehicle equipment meet the requirements of various FMVSSs or issue 'approval' stickers, labels, certificates, etc." In the Test Specimen Procurement section it says that "Equipment items are selected at random from manufacturing plants, distribution centers or retail stores. This approach is used by OVSC to ensure that the test specimens selected are a true representation of the product which could be purchased by the consumer."

You now see that the new rule does nothing except allow the MSP to not approve helmets. (See Notes)

Let's see... The Michigan State Police is charged by law to approve helmets. Instead, they point to federal standards for testing helmets but trust manufacturers to comply and sell helmets that pass the tests. Since 1994, of the 695 helmet models tested by NHTSA, 463 have failed because of labeling or performance. That's two-thirds of NHTSA-tested helmets have failed. Since the helmets were chosen randomly, you can only conclude that two-thirds of ALL helmets will fail. And since these are helmets, most of which are already on store shelves or ready to be sent to motorcycle dealerships or after-market shops... a reasonable person must still ask: What's an approved helmet?

Dave Atchison
ABATE of Michigan, Region 15
Webmaster of the Region 15 Information Center
http://www.atch.com/abate/

Read the additional information below then see What's an approved helmet? part 2.
ABATE takes a close look at MSP rule R28.951 and the Administrative Procedures Act of 1969. Sounds boring but it isn't. The same guy from Part 1 buys a helmet but gets a ticket. Follow, as he prepares to stand before a judge.

Notes:

Remember, the MSP must approve helmets and they can only promulgate rules to help them approve helmets. They can't change the law or make up law. Yet, they've created a rule that allows them to pass on their responsibility to NHTSA whose own record of oversight is miserable. Using a real loophole in the law, the MSP has disregarded the clear intent of the Michigan legislature, that "Crash helmets shall be approved by the department of state police."

Will they also accept liability for helmets they've now approved? Have the Michigan State Police actually approved a single helmet through the new rule? Have they done anything to ensure that motorcycle helmets sold in Michigan conform to minimum standards?

The answers to all these questions is NO!

Still, newspapers across Michigan said that the MSP had fixed the law (1, 2). But ABATE still challenges and wins over the new rule (1, 2, 3).

Since writing this:

9/4/01 - Sgt. Thad Peterson has been replaced by Sgt. Dan Davis.

10/21/01 - Looking through some boxes I found a 1995 report from Kim McCallister (ABATE of Georgia?). She had received helmet test results from NHTSA for the years 1980-1993:

Year	Helmets tested	Pass	Fail		Year	Helmets tested	Pass	Fail
1993	31	11	20		1986	30	0	30
1992	30	7	23		1985	32	0	32
1991	47	16	31		1984	32	21	11
1990	30	4	26		1983	test results not submitted
1989	30	6	24		1982	test results not submitted
1988	no helmets tested				1981	103	53	50
1987	no helmets tested				1980	162	63	99

Out of 527 helmets tested from 1980 through 1993, 181 passed and 346 failed, equaling a 66% failure rate. This brings the total of NHTSA-tested helmets failing at a rate of two-thirds for the last 21 years (1980-2000). Couldn't we say, at the least, that NHTSA is not much concerned over any motorcycle helmet manufacturer's compliance with FMVSS 218. They just don't care.

11/14/02 - The NHTSA helmet test results for 2001-2002 are now shown at Compliance Testing, Motorcycle Helmets FMVSS 218.

Year	Helmets tested	Pass	Fail
2002	40	25	15
2001	40	24	16

Grand totals: The NHTSA page currently covers 1994-2002 with a total of 775 helmets tested, 281 passed and 494 failed, equaling a 64% failure rate.

And for the last 23 years (1980-2002)? NHTSA tested 1302 helmets, 462 passed and 840 failed, equaling a 65% failure rate. The NHTSA-tested helmets fail because of performance, labeling or both. You may say a labeling requirement isn't really that important, but even a helmet that fails on account of labeling is not approved according to the July 27, 2000 MSP rule R28.951. Chances are you own of those helmets.

And what about all the helmets not tested by NHTSA? No one knows. But because of the random nature of choosing helmets to test, there's alot sold across the US, even today, that are not legal for use in the state of Michigan.

See also

What's an approved helmet? part 2 ABATE takes a close look at MSP rule R28.951 and the Administrative Procedures Act of 1969. Sounds boring but it isn't. The same guy from Part 1 buys a helmet but gets a ticket. Follow, as he prepares to stand before a judge.

What's an approved helmet? part 3 See why the Michigan State Police will never comply with the law and approve helmets and how a Reasonable Person standard applies to Michigan's mandatory helmet law.

Michigan Helmet Law page with links to all the essential documents for understanding the current state of Michigan's mandatory helmet law.

 

ABATE of Michigan, Inc. :  Region 15 : Wayne County - http://www.atch.com/abate/