Friends of Bikers of Lesser Tolerance - B.O.L.T.

In search of an answer to the question:
How can anyone ensure, with absolute certainty, compliance with Nevada protective headgear laws and the standards Nevada has adopted?

Analysis of Nevada protective headgear laws by jan on 9/16/2009:

Let's assume I plan to ride my motorcycle to Las Vegas and help their tourism industry by seeing a show and visiting the casinos, but want to find out the facts and nothing but the facts, about the protective headgear laws before I go. I don't like harassment, so I want a factual answer to that all important question, "How can anyone ensure, with absolute certainty, compliance with the Nevada protective headgear statute?"
So, I find the statute, then I go over to the Nevada DMV internet site. When I'm there, I don't find any additional regulation, and cannot find any standards they have adopted. The motorcycling handbook published by the NV DMV suggests wearing an "approved" helmet, but Nevada doesn't approve helmets and they don't have a list of approved helmets, and I already know the DOT and NHTSA don't approve helmets and don't have a list of approved helmets.

Well, the average person would be in quite a dilemna at this point, because they'd be traveling into Nevada and counting on the good graces of the Nevada Highway Patrol and local police force. Since the law is vague, enforcement is going to be arbitrary and ad hoc. There is no valid answer to the question "How can anyone ensure, with absolute certainty, compliance with the Nevada protective headgear statute?"
After doing quite a lot of research, I am still having a problem finding what standards the department has referenced per NRS 486.231 but I find a letter, not published on any Nevada government site, but posted by the Helmet Law Defense League. It is a letter from the Nevada Attorney General to Colonel Hosmer in 2002, in answer to the Colonels' question, "How can Nevada Highway Patrol troopers recognize a motorcycle helmet that does not comply with the standards set for the State of Nevada?" I find that the department referenced in the statute is not the DMV but the Department of Public Safety. I go to the DPS internet site to try and find what standard has been adopted, but it only shows Chapter 486 NRS. Initially, it appears Nevada may have failed to publish the standard for protective headgear that they are supposed to have adopted, (this actually has happened in some states), but I continue to search. I go back to the letter from the AG to Colonel Hosmer and find a clue. The letter states:
The Department has adopted by reference the standards set by the National Highway Traffic Safety Administration (NHTSA) in 49 C.F.R. §571.218. Nevada Code (NAC) 486.015. Violations of the helmet law are misdemeanor crimes under NRS 486.381.
Ahah, so after digging around for over an hour, I discover the standard is to be found in Nevada Administrative Code (NAC) rather than Nevada Revised Statutes (NRS), NAC 486.015. Instead of staying consistent, by publishing a standard for protective headgear as required by NRS 486.231, NAC 486.015 uses the term helmet rather than protective headgear. This adds to the difficulty for average persons to find all that is required of them. A search of NAC for headgear or protective headgear would not find 486.015 - one must, instead, search for helmet.

486.015 Helmets: Adoption by reference of provisions of Code of Federal Regulations. The department hereby adopts by reference the regulations contained in 49 C.F.R. § 571.218, as those regulations existed on January 1, 1994. The volume containing this section is available from the Superintendent of Documents, United States Government Printing Office, Washington, D.C. 20402, at the price of $20.
(Added to NAC by Dep’t of Motor Veh. & Pub. Safety, eff. 3‑30‑94)

While I'm at it, I also look up the statute which defines the penalty:
NRS 486.381 Violation of provisions concerning motorcycles and similar vehicles. Any person violating any provisions of NRS 486.011 to 486.361, inclusive, is guilty of a misdemeanor.
(Added to NRS by 1971, 1471; A 1991, 2232)

I not only have to find Nevada laws, but also have to find federal laws, and not just the current federal laws, but the impossible task of finding federal standards as they existed on a certain date. I'm offended that I would have to part with $20 (probably more expensive now) and wait for a federal response in order to find out the entirety of the law.

US CODE TITLE 49 CHAPTER 301

At first, I can't find 49 C.F.R. § 571.218, but I dig deep and find US Code Title 49 Chapter 301 (starting on page 475). I find out that the US Congress has authorized the NHTSA to create standards for motor vehicles and motor vehicle equipment, but that there are no federal laws that apply to me, because I am not in the business of manufacturing helmets, don't import them, don't distribute them, and don't sell them.

49 C.F.R. § 571.218

After four hours of diligent research, I finally find 49 C.F.R. § 571.218. I've pretty much given up on finding the standard as it existed on January 1, 1994. Okay, so let's dig into 49 C.F.R. § 571.218 and find out if my protective headgear is mentioned anywhere.
Wait a minute! This is not meant for me either! It just describes some testing procedures that I cannot understand because I am not a manufacturing engineer. 49 C.F.R. § 571.218 is obviously not intended for consumers and motor vehicle operators, but for manufacturers and testing labs.

So, I turn back to the opinion letter from the Attorney General that Nevada.
"The absence of the "DOT" sticker is an indicator that the helmet does not comply with the safety standards set out in the regulation. However, a helmet that is missing the "DOT" sticker, but meets the NHTSA standards, may still be legally worn. On the other hand, information provided by the NHTSA indicates that some persons who sell novelty helmets also provide a "DOT" sticker for the purchaser to apply to the nonconforming helmet themselves. These stickers alone do not make the helmet "legal."

Gosh! It is quite obvious throughout the opinion letter, that the AG cannot articulate how a person can, with absolute certainty, comply with the protective headgear statute, and it is equally obvious that Colonel Hosmer and the highway patrol are getting bad guidance based on false claims rather than fact and law. The letter also goes on to claim imaginary things, and apply a false interpretation of the federal standard, referencing sections of the standard but applying the AG's own words not found in law or reference standards, such as what helmets are to be made of. It is a matter of fact that neither the statutes nor the standards say what materials can be used to fabricate helmets. There are other non-factual statements within the letter from the AG. FMVSS 218 does not even mention foam or padding. Attorneys General cannot just invent additional requirements, such as padding or thickness of shell material, and prosecute failures to abide by them, as though they are law. Colonel Hosmer understood the problems that Nevada troopers would face if they enforced under false pretenses and improper guidance.

Colonel Hosmer of the Nevada Highway Patrol testified before a 2002 senate committee that there is no way his troopers are able to determine whether or not protective headgear is compliant or not compliant. "It goes to CFR's which goes to manufacturing requirements. There's no way a trooper in Goldfield at 3:00 in the morning can understand or determine the difference in the density of foam inside the helmet, the shell material, those type of things the way it is written right now. That is the main problem with NRS right now." Colonel Hosmer continues, "..and to say, the Commanders of the Highway Patrol, my Captains and Majors and I all round-tabled this for an extensive period of time and basically determined that we would put out a directive to our troopers that if you are going to stop a biker and you are going to issue them a citation, you must be prepared to articulate to the court how you knew that that was an improper helmet. And that is quite a challenge for most the troopers. I would dare say that since we put that out there probably hasn't been any, unless the person wasn't wearing any type of helmet whatsoever."

Total time required for the above research: 6 hours
Note: jan is a skilled internet researcher and senior analyst who already has a great deal of expertise in researching helmet laws of other states. The time required for a reasonable person of average intelligence, if they were persistent enough to stick with it and get through it all, would likely take them much more than a weekend, if ever.

Conclusion

It is impossible to answer the question of whether or not my protective headgear, or anyone elses, complies in Nevada. There is no guidance as to what is minimally required. There is no list that I can check. The presence or absence of a DOT sticker is not an indicator according to the AG. The statute does not say the protective headgear intended by the legislature is a helmet. Protective headgear is not defined, and neither is helmet, in either state or federal law. Likewise, the materials the protective headgear or helmet needs to be fabricated from are not defined. The NHTSA says in their interpretive letters that they don't approve helmets. Not only is there no list of approved helmets, but the closest the NHTSA comes to a list of helmets that do not comply is a recalls database, and test results, but at the top of each test results page, the NHTSA says to continue to use the equipment unless notified by the manufacturer to stop. At any time prior to the stop, and charges being filed, did the LEO study, review, or even see the contents of 49 C.F.R. § 571.218 as those regulations existed on January 1, 1994? I would want to know, under penalties of perjury, the exact details of how he/she managed to do that, because I consider it more than an unreasonable. It's impossible unless the state has archived copies filed away and not available to the general public. Case law precedence, such as Grayned v City of Rockford, says that vague laws violate basic principles and cannot be enforced without violating important constitutional rights.

" ....the government cannot make any objective standards for helmets without taking on liability, and since they are expressly forbidden from taking on any liability, they can never make an objective standard for helmets. Without an objective standard it all becomes ad hoc and arbitrary. Ad hoc and arbitrary is the foundation of vague law. Vague law is Unconstitutional." Richard Quigley

Richard Quigley (deceased in 2007) was riding his motorcycle as a tourist in Nevada in 2001 and encountered an impossible situation which he describes quite well in testimony to Nevada legislators in 2002. You can read the entire transcript and hear audio of the testimony by visiting the Nevada BOLT site at http://www.boltofnevada.com/testimony.html
Here is a portion of that testimony, from the perspective of an unsuspecting tourist suddenly subjected to an impossible situation:
"...we need some sort of clear guidelines for enforcement and he (the AG in the letter to Colonel Hosmer) pointed out that it's a misdemeanor. My heart went in my throat, when I read that opinion, I said, Holy Toledo! I was riding down the road in the State of Nevada, thought I was in compliance with the law, wasn't in compliance with the law, and I was subject to a penalty that could have landed me a year in jail? I don't believe I'll be coming back to Nevada on my motorcycle, until we get this one fixed."

Unfortunately, the Nevada legislature has still not fixed the problem which this impossible law has created, and other motorcyclists are being subjected to arbitrary and ad hoc enforcement.

NO LIST NO LAW