Academic journal article South Dakota Law Review

The Helmet Law in Nevada: How to Hassle Harley Riders

Academic journal article South Dakota Law Review

The Helmet Law in Nevada: How to Hassle Harley Riders

Article excerpt

I. 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.

II. 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. …

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