Superior Court of California
|(1) Are the citations correctable?
The court finds the citations are not correctable. Defendant contends that because of its location within Division 12 (commencing with Section 24000 of the Vehicle Code), a violation of Section 27803(b) constitutes an infraction involving equipment; and that under the "plain language" of CVC 40303.5(d), this constitutes a correctable equipment violation, for which he should have been issued a notice to correct violation (or "fix-it ticket").
Section 40303.5 provides that a fix it ticket shall be issued "unless the arresting officer finds that any of the disqualifying conditions specified in subdivision (b) of section 40610 exist. These disqualifying conditions include "(2) the violation presents an immediate safety hazard"; and "(3) The violator does not agree to or cannot promptly correct the violation." As both of these disqualifying conditions were present here, the provisions of Section 40303.5 requiring the issuance of a fix it ticket are inapplicable.
|The language of the statute in this regard is very clear, the violation is, without question, correctable . . . barring a "disqualifying condition."
In this case, however, not only was I specifically not charged with any disqualifying condition, but not one of the six cops testifited that I volated any of the disqualifying conditions. The judge didn't say "according to testimony" or "the facts indicate." What he said was "As both these disqualifying conditions were present..." with no supporting authority. In other words, he just made it up!
|(2) Is the statute constitutional?
Defendant challenges the constitutionality of this statute "as applied" and as written. The Court concludes the statute is constitutional as applied and as written. This conclusion is based on Buhl v. Hannigan (1993) 16 Cal. App. 4th 1612; Bianco v. California Highway Patrol (1994) 24 Cal. App. 4th 1113 and Easyriders v. Hannigan, 9th Circuit Court of Appeal (1996) 92 F.3d 1486.
|The court referenced the cases it plans to use, but absolutely mis-cites the decisions themselves. Watch...|
| Defendant's argument that the statute is unconstitutional is based onhis position that it is impermissibly vague. Thus, defendant's challenge appears in actuality to be a challenge to the language used in the statute, i.e. a challenge to the statute as written. This Court's decision is based on precedent from higher courts. The Buhl case specifically held that the statute was not impermissibly vague, holding that standards of the type used in this statute are not impermissibly vague, provided that their meaning "can be objectively ascertained by reference to common experiences of mankind."
Defendant is arguing that the statute is vague as to what constitutes a helmet. Specifically the defendant argues that whether a baseball cap does or does not constitute a helmet is something that can not be objectively ascertained "by reference to common experiences of mankind." The testimony of the officers was clear and consistent that a baseball cap did not constitute a helmet.
Buhl held that consumers and law enforcement officers are not required to determine whether a helmet complies with federal safety standards; rather, the law only requires that the motorcyclist wear a helmet bearing a certification of compliance with the standards. Under Buhl, the Court is expressly allowed to rely on common objective experiences to determine what constitutes a helmet. Presumably the arresting officer is also entitled to do so. The testimony of the officers was clear that a baseball cap did not constitute a helmet under any standard of objective experience.
|The next move is barely cute. He alters my attack on the statute "as enforced," to "as written," so he can say it's already been found consitutional "as written."
Next, he goes to the portion of the Buhl case that had to do with the language relating to the fit of a helmet -- "excessive lateral or vertical movement" -- and (mis-)applied the Buhl court's "common experiences of mankind" reference there to the issue of the standard, or lack thereof, to define a "safety helmet." In so doing, he not only violated the rule against mis-citing a decision, but he is doing exactly what Buhl said the statute does not do, and that is hold the consumer responsible for determining if a helmet if properly fabricated, based on the subjective opinion (common sense) of the cop.
If "common sense" were the standard called for in the statute, it would not have cleared the first legal attack. Besides, what am I to do? I have no common sense. Without a list to refer to, I'm sunk!
|In Bianco v. California Highway Patrol (1994 Cal. App. 4th 1113, the Court modified this ruling somewhat, stating "[W]e conclude that the statement in Buhl that the consumer compliance with the state law only requires the consumer to wear a helmet bearing the DOT self-certification sticker does not apply when a helmet has been shown not to conform with the federal standards, and the consumer has actual knowledge of that fact."||Bianco also said that evidence that a helmet does not comply must be based on "competent objective evidence" from an independent testing laboratory, or on a recall by the manufacturer. AND, the rider must be shown to have been notified. But no...!?!|
|Defendant relies on language from Buhl, that "the proposition that the statute would require the consumer or enforcement officer to determine if a helmet is properly fabricated is absurd" to argue that no evidence as to the fabrication of his "helmet"/baseball cap should have been admissible, and that he could not be required to determine if his baseball cap met the applicable standards. Despite defendant's creative arguments, the Court relies on common sense, as authorized in Buhl, in inferring that both defendant and the arresting officer were aware that his baseball cap was not a "helmet," that defendant had actual knowledge that despite the DOT symbol (if present), his cap did not meet compliance with federal safety standards, and that therefore defendant did not meet the requirements set forth the consumer under either Buhl or Bianco.||What I did was to challenge the subjective opinions of the cops as to what constitutes either a "helmet" and a "baseball cap," and most certainly claimed that I am not required to determine proper helmet fabrication. He rests his whole decision on the "common sense...authorized in Buhl" -- you know, that "common experience" explanation the Buhl court used to describe how a helmet fits, not what a helmet is. This part was just stupid. But believe it or not, it gets worse...|
|Easyriders v. Hannigan, 9th Circuit Court of Appeal (1996) 92 F.3d 1486, addressed the issues of probable cause to believe that a motorcycle has actual knowledge that his helmet does not meet federal standards. The Court states that an officer many have a "reasonable suspicion, based on reasonable inferences drawn from the helmet's appearance" that the motorcyclist was violating the law. These "reasonable inferences, drawn from the helmet's appearance" would also support a finding that the defendant himself was aware that his cap was not a helmet. Easyriders goes on to suggest that an officer who discovers that a helmet does not comply with the DOT standards, could give a written warning to the motorcyclist, which would provide probable cause to believe actual knowledge of noncompliance if the motorcyclist was stopped again.||Again, in the style of a piss-poor rookie lawyer, the judge couldn't not mis-cite the case. Easyriders "reasonable inferences drawn for the helmet's appearance" was used by the 9th Circuit Court to justify a traffic stop, not issuance of a citation -- much less supporting a conviction. He's just terrible!|
| Here, defendant was cited six times for wearing his baseball cap. Even if defendant's argument were to be accepted, certainly the second, third, fourth, fifth and sixth citations were supported by actual knowledge of compliance. Defendant has also has prior citations, (The Court takes judicial notice of docket numbers 90207037, 90242520 and 90319433) which supports a finding of actual knowledge on the first citation as well, in addition to the "reasonable inferences to the drawn" from the appearance of the "helmet" itself.
For these reasons the Court denies any and all motions to dismiss and finds the the defendant guilty beyond a reasonable doubt of the above noted citations.
|By now, you've either gotten it or you haven't. It is sufficient to say that all I have learned from ALL of these experiences, and the ten years that went before, is that in some courts, none of the rules count. In some courts, the judge, no matter how otherwise intelligent, will say and do some really, really stupid stuff! . . . and hope to get away with it!