Helmet
and Eye Gear Myth
It is hard to talk to more than a few riders without the topic of helmets coming up. Once it does, you are likely to hear someone claim that you can get away with wearing a ‘do rag’ or some other such item, and do not have to wear protective eye gear because the Georgia Commissioner of Public Safety never published a list of the ones which it approved. Wrong.
In § 40-6-315, the Official Code of Georgia reads as follows:
Equipment for motorcycle riders
(a) No person shall operate or ride upon a motorcycle unless he or she is wearing protective headgear which complies with standards established by
the commissioner of public safety.(b) No person shall operate or ride upon a motorcycle if the motorcycle is not equipped with a windshield unless he or she is wearing an eye-protective device of a type approved by the commissioner of public safety.
(c) This Code section shall not apply to persons riding within an enclosed cab or motorized cart. This Code section shall not apply to a person operating a three-wheeled motorcycle used only for agricultural purposes.
(d) The commissioner of public safety is authorized to approve or disapprove protective headgear and eye-protective devices required in this Code section and to issue and enforce regulations establishing standards and specifications for the approval thereof. The commissioner shall publish lists of all protective headgear and eye-protective devices by name and type which have been approved.
The statute says that the Commissioner “shall publish lists”. The Commissioner did not publish lists. As there are no lists, so the myth goes is nothing is ‘disapproved’, anything goes. The appellate courts of Georgia, however, have rejected that and every other challenge to the statute, including those made on Constitutional rights such as Due Process, First Amendment and Equal Protection.
In ABATE of Georgia, Inc. v. Georgia, 264 F.3d 1315, *1316 (11th Cir. 2001), the United States Court of Appeals for this circuit considered such challenges to the statute. In response, the Court wrote and held:
Plaintiff first contends that the Board's failure to publish lists of approved headgear and eye-protective devices violates Plaintiff's rights under the First, Fifth and Fourteenth Amendments to the United States Constitution. Second, Plaintiff contends that the statute is unconstitutionally vague. Plaintiff alleges that the failure of the Board to publish a list of approved gear prevented ABATE's members from knowing what equipment satisfies the statutory requirements
The district court did not err in granting Defendants' motions to dismiss for failure to state a claim upon which relief can be granted. The statute authorizes the promulgation of rules and regulations enacting standards. O.C.G.A. § 40-6-315. Standards have been promulgated and they require manufactures to affix a permanent label to headgear and eye-protective devices showing compliance with the applicable standards. See GA. COMP. R. & REGS. r. 570-12-.01 et. seq. (1999); See id. at r. 570-13-.01 et seq. Plaintiff asserts that the statute requires the Board to issue lists approving specific types of headgear, which Dowis rejected. See Dowis v. State, 243 Ga. App. 354, 355, 533 S.E.2d 434 (2000). The Georgia Court of Appeals interpreted the statute and stated that “[t]he statute does not require the Board to approve specific types of headgear.” Dowis, 243 Ga. App. at 355, 533 S.E.2d 434. The district court did not err when it reasoned that it would be a gross intrusion for it to undercut this decision of the Georgia Court of Appeals, construing a Georgia statute.
The Georgia Court of Appeals decision which was cited as controlling in the Abate case was Dowis v. State, 243 Ga. App. 354, 533 S.E.2d 434, (2000). That decision held:
Though it might be debatable whether certain types of headgear complied with standards established by Board of Public Safety, it was absolutely clear that defendant's headgear, which consisted only of a cloth bandana, did not comply with standards. O.C.G.A. § 40-6-315(a).
Save your money (and your eyes and head for that matter). Always
wear a helmet and eye gear if you don’t have a windshield and avoid the
ticket.