STATUTE:

Chapter 71 of the Consolidated Laws. Title III--Safety Responsibility; Financial Security; Inspection; Size and Weight, and Other Provisions. Article 9--Equipment of Motor Vehicles and Motorcycles. Section 381. Motorcycle Equipment. :

". . . 6. It shall be unlawful for any person to operate or ride upon a motorcycle unless he wears a protective helmet of a type which meets the requirements set forth in section 571.218 of the federal motor vehicle safety standards as may from time to time be amended. . . ."

FINE:

Chapter 71 of the Consolidated Laws. Title III--Safety Responsibility; Financial Security; Inspection; Size and Weight, and Other Provisions. Article 9--Equipment of Motor Vehicles and Motorcycles. Section 381. Motorcycle Equipment. :

". . . 13. A violation of any of the provisions of this section shall be punishable by a fine not exceeding one hundred dollars or by imprisonment for not exceeding thirty days, or by both such fine and imprisonment."

STANDARDS:

Chapter 71 of the Consolidated Laws. Title III--Safety Responsibility; Financial Security; Inspection; Size and Weight, and Other Provisions. Article 9--Equipment of Motor Vehicles and Motorcycles. Section 381. Motorcycle Equipment. :

". . . 6.. . .The commissioner is hereby authorized and directed to adopt regulations for helmets which are consistent with the requirements as specified in section 571.218 of the federal motor vehicle safety standards as may from time to time be amended. . . ."

". . . 9. It shall be unlawful to sell, offer for sale or distribute any goggles or face shields for use by the operators of motorcycles unless they are of a type and specification approved by the commissioner and appear on the list of approved devices maintained by the commissioner."

". . . 9-a. It shall be unlawful to sell, offer for sale or distribute any protective helmets for use by the operators or passengers of motorcycles unless they are consistent with the regulations of the commissioner as provided in subdivision six of this section and within the requirements specified in section 571.218 of the federal motor vehicle safety standards as may from time to time be amended."

COURT DECISIONS:

"Fact that this section requiring that motorcycle operators or riders wear protective helmets was enacted because of desire to qualify State for federal highway construction funds and that federal government thereafter eliminated requirement of a compulsory helmet law did not render this section invalid." People v. Bennett, 1977, 89 Misc.2d 382, 391 N.Y.S.2d 506.

"Subdivision 6 of this section requiring motorcycle operators to wear helmets was not unconstitutional because it delegated authority to commission of motor vehicles to adopt regulations with respect to type of helmet or specifications." People v. Newhouse, 1968, 55 Misc.2d 1064, 287 N.Y.S.2d 713.

That was in 1968. There have been several changes in the law since then that can override this outdated decision.

"This section prohibiting operating or riding motorcycle unless operator or rider wears protective helmet of type approved by commissioner was regulation of conduct which was within the scope of permissible legislative action." People v. Schmidt, 1967, 54 Misc.2d 702, 283 N.Y.S.2d 290, appeal dismissed 23 N.Y.2d 686, 295 N.Y.S.2d 936, 243 N.E.2d 153.

That was in 1968. There have been several changes in the law since then that can override this outdated decision.

"Subd. 6 of this section requiring motorcyclists to wear protective helmets is valid exercise of state's police power and is constitutional." People v. Bielmeyer, 1967, 54 Misc.2d 466, 282 N.Y.S.2d 797.

"Subdivision 6 of this section prohibiting operating or riding motorcycle unless operator or rider wears protective helmet of type approved by commissioner is too indefinite, removes from individual right to exercise his judgment or preference in use of personal adornment, and is unconstitutional." People v. Smallwood, 1967, 52 Misc.2d 1027, 277 N.Y.S.2d 429.

This basis for this decision was set aside when the New York Legislature amended the law in 1967 to require a "list of approved devices" under subsection 9 -- the list negating the "too indefinite" argument. However, with the banning of all such lists in 1988, the argument and this decision can be brought forth in the next court action.

"Wearing motorcycle helmet 'cowboy style,' i.e., sitting on back of head and resting on top of defendant's shoulders, did not constitute compliance with motorcycle helmet law, McKinney's Vehicle and Traffic law s 381, subd. 6, as purpose of requiring helmet was to protect wearer's entire head. People v. Bloomfield, 1985, 130 Misc.2d 151, 495 N.Y.S.2d 133.

We included this one because it shows that the spirit of the fight was alive and well in New York in 1985. However, it is also interesting to note that the nonsense of the purpose being to "protect wearer's entire head" is as weak as a two penny drink. Against the potential damage to the neck that was uncovered in New York over twenty-five years ago, the issue of what it is that helmets actually protect, and at what expense, is still open to debate -- in and out of court.

"Fact that many facets of human behavior adversely affect public health, welfare and safety, such as smoking, drinking and drug use, did not mean that unless all such harmful activities were dealt with by legislature, it was discriminatory for state to require that motorcycle operators and riders wear protective helmets." People v. Bennett, 1977, 89 Misc.2d 382, 391 N.Y.S.2d 506.

Mark Callahan has gone in with the right question and pulled the first written response from the DMV.  This is the way the challenge starts. Now, with the State of New York demonstrating that they are unprepared to provide riders with a method to comply with the law, with certainty, (those brochures from NHTSA do nothing). If you get a ticket for a helmet which has been certified by it's manufacturer as being in compliance with FMVSS218 (see above), take on the law over this vagueness defect.

RELATED INFORMATION:

The Effect of the NY State Helmet Law - This state sponsored report studies the years 1966-67, before and after the NY Helmet law and details that the fatality rate remained unchanged and that neck injuries increased from 1.1 to 2.4%. This report didn't topple NY's helmet law however, which speaks very loudly as to how powerful our opposition is. Don't give up. Print this out and show your legislators...

NY Motorcycle Safety Program - Gov. Pataki to establish self-funded safety program.

CURRENT ACTIVITY:

Sept 5 - 7 2003 - Freedom Ride from MA to PA to celebrate PA's Adult Freedom of Choice WIN and to promote awareness for Freedom of Choice for ALL riders in MA, NY and NJ.

SB S170 - SPONSOR: HOFFMANN

TITLE OF BILL: An act to amend the vehicle and traffic law, in relation to requiring certain motorcyclists to wear protective helmets

PURPOSE: This bill exempts those 21 years and over from being forced to wear helmets while operating motorcycles.

SUMMARY OF PROVISIONS: Subdivision 6 of § 381 of the Vehicle and Traffic Law is amended.

JUSTIFICATION: The "Federal Aid Highway Act of 1975" abolished the power of the Department of Transportation to withhold highway safety funds for noncompliance with mandatory helmet laws. Since then, twenty- seven states now have optional helmet laws for adults. Included in this number are such neighboring states as Connecticut, Rhode Island, Dela- ware, New Hampshire, Maine, and Ohio, making New York's law inconsistent with regional policy.

A survey of 1995 data shows comprehensive mandatory helmet laws DO NOT result in lower fatality rates. In fact, statistics show a higher frequency of fatalities among riders in states with mandatory helmet laws- (1 in 1574 registered motorcycles) as compared to states that have optional laws for adult rider (1 in 1867 registered motorcycles).

These numbers support other studies, one done using 1993 statistics which showed fatalities per 100 motorcycle accidents in mandatory helmet states to be 2.98 as compared to voluntary helmet states, 2.90.

Helmets are an unnatural weight upon the head of the rider and radically increase cranial temperatures. Helmets severely restrict peripheral vision and significantly reduce hearing. No helmet, regardless of cost or design, is capable of resisting impact stresses above 13 m.p.h., as Federal Department of Transportation testing has evidenced, and, in lateral skids, helmets deteriorated at 1 1/2 m.p.h.

Thus, taking into account that survey result the choice of when and where to wear the helmet would best be left up to the person operating the motorcycle, as is the case in the several other states.

FISCAL IMPLICATIONS: None to the state.

EFFECTIVE DATE: This act shall take effect on the 45th day after it shall have become a law.

RECENT ACTIVITY:

AB 589 requires motorcycle user to wear helmets that meet the federal motor vehicle safety standards and which have been impact-tested by the US Department of Transportation, the Commissioner of Motor Vehicles or by an independent laboratory approved by the Commissioner of Motor Vehicles. SB 170 exempts motorcyclist over the age of 21 from the requirement of wearing protective helmets of a type approved by the Commissioner of Motor Vehicles when operating or riding a motorcycle.

May 14, 1999 - S. 3182 - passed the Senate Trans Committee and on to the Senate Floor.

WEBSITES:

• New York Senate
• New York DMV