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 February 2003 issue of the Michigan Rider.

What's an approved helmet? PART 3
the Reasonable Person Standard vs. Michigan's Mandatory Helmet Law

You've looked at the current helmet law MCL 257.658. It says that "Crash helmets shall be approved by the department of state police." And when the Michigan legislature says shall, they mean must - the Michigan State Police (MSP) must approve helmets.

On July 27, 2000 the MSP adopted federal standards, by reference, in their rule R28.951. They included lots of guidelines to determine whether a helmet met federal specifications or not but you saw that, according to state law, a rule cannot include guidelines and you're not obligated to follow them anyway. After boiling down MSP rule R28.951, you saw the basis is FMVSS No. 218, an engineering document which prescribes the testing of helmets. And no one can read this and buy an approved helmet - not the judge, not the prosecutor, not even the state police. (See Part 2)

With rule R28.951, the MSP thought they had found a way to approve helmets without actually approving them. And using the ol' bureaucratic shuffle, they've attempted to sidestep any legal liability for helmet approval - it's not us, it's them (the U.S. DOT) who say which helmets are ok to use.

But why the resistance? What's so difficult about approving helmets anyway?

Why the MSP will never comply with the law

By law, to approve helmets the MSP would have to test helmets themselves. They believe testing is the method through which approval is found - MSP rule R28.951 is based on helmet testing.

So, for the MSP to approve helmets, they would have to purchase test equipment and staff a facility with qualified individuals. They would have to buy one of every brand, model, and size of motorcycle helmet sold in Michigan and test each one. Way too much money and work involved for the MSP. And what if you or an out-of-state rider was wearing a helmet not sold in Michigan or tested by them?

Or, to comply with state law, the MSP could hire a private company to test helmets. But again, it's more money and work than the MSP is willing to devote to MCL 257.658 and motorcycle helmets.

But even if they did do either of these, the MSP would still have to produce something (a list?) to let us riders know which helmets are approved and which aren't.

Now imagine the problem the state police would have if they did produce a list of approved helmets... The MSP now goes on record saying these helmets are ok for use in Michigan. But what happens when a biker gets a head injury while wearing one of these approved helmets? Can you say lawsuit?

The difficulty with testing and approving helmets is there are hundreds of different brands, models and sizes of motorcycle helmet sold around the country. Not even the federal government with all of its resources can test each one and continue to do so every year. In fact, the task is so insurmountable, the U.S. DOT doesn't even pretend responsibility for ensuring motorcycle helmet compliance with FMVSS No. 218 (see Part 1).

Reasonable person standard

There's such a thing in law as a reasonable person standard. You can't find it specifically defined in state law but it's used throughout. After reading lots of state law and looking at examples of its use, you see it's repeatedly concerned with what a reasonable person would do, conclude, or be lead to believe in this or that situation.

Looking at your copy of Black's Law Dictionary, Fifth Edition, it says reasonable is "Fair, proper, just, moderate, suitable under the circumstances. Having the faculty of reason; rational; governed by reason; under the influence of reason..." So what's reason? "A faculty of mind by which it distinguishes truth from falsehood, good from evil, and which enables the possessor to deduce inferences from facts or propositions."

But what if the law itself is not reasonable? How can you be expected to understand it and comply?

In order for a reasonable person standard to exist in law, it would first require the law itself is stated clearly and simply and a person "governed by reason" should be able to look at the law, "deduce inferences from facts or propositions," and without a whole lot of effort, at least under these circumstances, be able to understand it and comply.

Does a reasonable person standard require hiring a lawyer? Definitely not. Nowhere in state law does it say you must hire a lawyer to determine what the law says and means. It's recommended, of course, but not required. C'mon, this is just traffic law. Everyone who's able to get a driver's license should be able to read and comply with the Motor Vehicle Code. And you're just an ordinary Joe trying to obey the law and buy a helmet so you can go for a ride.

But using reason to understand and comply with Michigan's mandatory helmet law is an impossibility.

Granted, statutory law can seem to be a confusing mess of rules and regulations for you to weed through but it does follow a logic - there are definitions of terms and if you follow all the leads, you can come to a conclusion of the law and its meaning.

But who determines who or what is reasonable?

Well, any inclusion in law of a reasonable person standard implies that you, the reasonable person, believe you're being reasonable. It's up to you, right? You're the one trying to figure all this out; you're the one who decides whether you've been reasonable in your search for what the law means.

But since you got a ticket you'll have to prove it in front of a judge.

And all you should have to do to show the judge or a jury you're a reasonable person in this situation is to detail the method and extent of your search for determining what the law is and how you've tried to comply. The judge will want to see the road you've gone down and the paper trail showing what you could and couldn't find out.

Included in the same Black's Law Dictionary is a definition of the reasonable man doctrine or standard. It says, "The standard which one must observe to avoid liability for negligence is the standard of the reasonable man under all the circumstances..."

And that's what you're going to do - show you've made a good faith effort to avoid liability (getting a ticket and paying a fine) because of your negligence by not knowing beforehand what is meant by an approved helmet under Michigan law.

Just so happens, you found out nobody knows what an approved helmet is.

Can anyone tell you just by looking at a helmet whether it's approved or not? Can anyone use FMVSS No. 218 and tell you whether a specific helmet is approved or not?

The answer is NO to both these questions because an approved helmet under Michigan law is never completely defined nor will it ever be.

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

P.S.

During ABATE of Michigan's 1999-2001 civil disobedience campaign, one of our three basic rules was that you must wear something on your head: a bandana, ball cap, colander... anything. This becomes your interpretation of a helmet.

You may wonder though how a reasonable person, as defined above, could say a bandana or ball cap is acceptable in place of any helmet, approved or not. Well, wearing anything on your head complies with the law because the state police have not sufficiently defined what an approved helmet is.

State law, MCL 257.658 (4), says you must wear a crash helmet approved by the department of state police, not just any helmet - it's specific. Without a definition for an approved helmet from the MSP, it's up to you to interpret what is meant by crash helmet (by the way, helmet is not even defined under state law). And by wearing something, you're trying to comply with the law. A bandana or ball cap may not protect your head much but an actual helmet really doesn't protect you much anyway either.

Reasonable does not mean - you get along by going along. Look, if we don't hold the state agency who's responsible for enforcing the law to follow the law, then the law is arbitrary. The state police may want the definition of an approved helmet to be so slippery it means whatever they feel like it to mean at the time. But is that what you want? Every judge and every prosecutor in the state should be with you on this.

Our other two rules were:

Two good rules whether you plan to challenge Michigan's mandatory helmet law or you're just out for a ride.

See also

What's an approved helmet? part 1 Can a reasonable person read Michigan law and figure out what an approved helmet is according to the Michigan State Police? Follow 20+ links for the story of civil disobedience in Michigan and a common sense argument that Michigan's mandatory helmet law is unenforceable.

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.

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/