Safe Ride by Spencer Kuvin, Motorcycle Attorney

Motorcycle Helmet Safety and the Law

 Friday, July 08, 2011

SAFE RIDE....Leopold~Kuvin, P.A. is committed to promote public safety.  We have observed the tragedies of our motorways, and our first priority is your safety.  We urge drivers to be aware and mindful of motorcyclists on the road….and wish all motorists a safe passage home.  

Motorcycle Helmet Safety and the Law

Many people assume that Florida completely repealed its motorcycle helmet law in 2000.  It did not.  Florida Statute section 316.211 still states:

A person may not operate or ride upon a motorcycle unless the person is properly wearing protective headgear securely fastened upon his or her head which complies with Federal Motorcycle Vehicle Safety Standard 218 promulgated by the United States Department of Transportation. The Department of Highway Safety and Motor Vehicles shall adopt this standard by agency rule.

Additionally, subsection 2 of that same law states that “a person may not operate a motorcycle unless the person is wearing an eye-protective device over his or her eyes of a type approved by the department.”  What was changed in 1999 is an addition to this law which allows a person over 21 years of age to operate or ride a motorcycle without wearing protective headgear if such person is covered by an insurance policy providing for at least $10,000 in medical benefits for injuries incurred as a result of a crash while operating or riding on a motorcycle.  For all practical matters this provides an adult over 21 the freedom to choose whether they will wear a helmet as long as they have the proper insurance.  Regardless of the adult’s choice, anyone under 21 years of age still is required to wear a helmet and protective eye gear.

Before this law was changed to allow for this exception for adults only, it was challenged on Constitutional grounds.   The argument that was made on behalf of riders who wanted the ability to go without helmets was that it violated an individual’s constitutional right to privacy or rights characterized by motorcycle operator as rights “to be let alone” by government and to be free from “paternalistic” legislation.  The Federal Courts found this argument unpersuasive and instead found that this section constituted valid exercise of a state's police powers to prevent unnecessary injury to riders themselves and to prevent public from having to bear costs of such injury.  Additionally the court found that “there was no broad legal or constitutional right to be let alone.”  This case was appealed to the United States Supreme Court, but it declined to reverse this opinion.  See Picou v. Gillum, 874 F.2d 1519 (11th Cir. 1989), certiorari denied 493 U.S. 920.

The National Highway Traffic Safety Administration estimates that motorcycle helmets reduce the likelihood of crash fatality by 37%.  Those same studies show that helmets are highly effective in preventing brain injuries, which often require extensive treatment and may result in lifelong disability. In the event of a crash, un-helmeted motorcyclists are three times more likely than helmeted riders to suffer traumatic brain injuries.

The key issue for the court was the high cost to society of riders who choose not to wear helmets.  A head injury can cause not just death, as we recently saw at an anti-helmet law rally in New York this past week, but it can result in severely debilitating head injuries which can cost in excess of $1 million.  When a rider does not have adequate funds or insurance, society is forced to foot the bill.   The even sadder truth is that Medicare or Medicaid patients are often treated as second class citizens in our health care system.  When faced with life and death circumstances, you don’t want to worry about whether your lack of coverage impacts your quality of care.   

Individual rights should be overriding.  What a person chooses to do with their own safety and their own life, as long as it does not hurt others, should control.  The problem is that all important phrase “as long as it does not hurt others.”  Make no mistake, $10,000 will cover one or two days in the hospital.  The cost of a CT Scan or MRI of the brain ranges between $2,500 and $3,500.  Merely taking a few scans could use up this minimal protection within an hour.  As a result, when a rider sustains a brain or head injury, and they have little to no insurance, taxpayers foot the bill for their care.  Does this hurt others?  Is the cost of Medicare and Medicaid affecting our national budget and the national discourse about taxes?  I think it is.

After California introduced a helmet use law in 1992, studies showed a decline in health care costs associated with head-injured motorcyclists. The rate of motorcyclists hospitalized for head injuries decreased by 48% in 1993 compared with 1991, and total costs for patients with head injuries decreased by $20.5 million during this period.  A study of the effects of Nebraska's reinstated helmet use law on hospital costs found the total acute medical charges for injured motorcyclists declined 38%.

A NHTSA evaluation of the weakening of Florida's universal helmet law in 2000 to exclude riders 21 and older who have at least $10,000 of medical insurance coverage found a huge increase in hospital admissions of riders with injuries to the head, brain, and skull. Such injuries went up 82% during the 30 months immediately following the law change. Less than one-quarter of the injured motorcyclists' hospital bills would have been covered by the $10,000 medical insurance requirement for riders who chose not to use helmets.

I am a huge proponent of protecting individual rights and exercising our individual freedoms.  These are the bedrock principles on which our democracy was created.  But I also believe in personal responsibility and acting in the best interest of the public.  One of the ways to protect you against an uninsured driver or an underinsured driver is to talk to your insurance agent or company about uninsured motorist coverage.  Other than personal injury protection insurance, this is the only coverage that protects you for personal injuries.  As long as there are teenagers texting and driving, your freedom and safety is at their mercy, and your only saving grace, if not a helmet, may be the quality of your motorcycle and health insurance.  I urge all riders to consider this…exercise your freedom, but make sure you still protect yourself….after all, it’s the law.  

Anonymous commented on 16-Jul-2011 10:47 AM
Here in the Bahamas we wear a helmet as you would be a fool not too! The driving here is crazy and there are little to no rules. You literally take your life in your hands just being on the road in any capacity let alone a motorcycle. In the states you
are lucky to have a much better enforcement of traffic safety and laws.

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