ABATE of Maryland Testimony For SB 239

ABATE of Maryland Testimony For SB 239

What is ABATE of Maryland?

ABATE of Maryland is the largest association of motorcycle riders in Maryland. Our members have joined together to advocate training as the foremost means to reducing accidents and injury. ABATE of Maryland is a grass-roots organization comprised of volunteers. We are concerned about our individual and collective safety. And we are dedicated to responsible motorcycle legislation.

What Issue is Addressed by Motorcycle Helmets?

Some would say the answer is motorcycle safety. I would suggest that this is false. Motorcycle safety is the activity of riding a motorcycle and arriving safely and uninjured at your destination. A motorcycle helmet will not help you achieve this goal. Simply stated, the goal of safe riding is to ‘keep the rubber side down and the shiny side up’! And that is precisely what we are doing!

Maryland motorcycle riders have continuously improved their safety record by avoiding accidents and subsequent injuries and fatalities for many years. The number of motorcycle accidents in Maryland has decreased from 3182 in 1985 to 889 in 1996. Since the all-rider helmet law was passed in 1992, the number of motorcycle accidents decreased from 1417 in 1992 to 889 in 1996. It is no surprise to me that the number of fatalities has decreased as well. Motorcycle-related fatalities have decreased from 72 in 1985 to 55 in 1992, and finally 26 in 1996. Helmet law advocates would like us to believe that the reduction in fatalities is because of the all-rider helmet law. It is evident to me that the reduction in fatalities is directly related to the decrease in accidents.

To put this in perspective lets examine some statewide Maryland motor vehicle statistics.

Maryland Motorcycle fatalities decreased from 1987 to 1997 by 60%. Non-motorcycle fatalities for the same timeframe decreased 12%. Our decrease in fatalities alone accounts for 32 percent of the entire reduction in traffic deaths statewide.

We have demonstrated for more than a decade that we are serious about improving our safety record. This is a nation-wide trend that is mirrored in Maryland. We know of no other way to convince you, our legislators, then by providing evidence that we get the message.

“If it was happening in the car world, they’d call it the greatest triumph in the history of transportation safety. But like so many other things involving motorcyclists, it’s largely ignored.” (AMA Quote)

We trust you as our legislators to make sound decisions regarding Maryland policy. We ask that you trust us to make sound decisions regarding motorcycle safety.

Safety Devices

A number of motor vehicle safety issues have been subject to public scrutiny and controversy lately. The motorcycle helmet is among them. As it turns out, there are number of devices that may appear to be good ideas, but in reality have limitations and each one has a set of problems of their own.

First, there are air bags. Consumer outrage led NHTSA to implement a campaign to allow drivers to install on-off switches for their air bags. This controversy has gone so far as an Ohio judge sentencing a man to jail for failing to DISCONNECT his passenger side air bag. I have a copy of a NHTSA document titled ‘Air Bags & On-Off Switches Information for an Informed Decision’. This is exactly what motorcyclists want. We want the opportunity to make individual informed choices regarding motorcycle helmets.

Next, there are Daytime Running Lights known as DRLs. NHTSA is currently reevaluating the standard for DRLs in response to consumer pressure. As more and more cars get them, they produce excessive glare and ‘light pollution’ and may actually decrease rather than increase visibility. Motorists may actually get to decide for themselves when it is appropriate to use lights and when it is not.

Then there is the NHTSA helmet testing standard FMSSV218. The Maryland motorcycle helmet law relies on this standard for compliance. The biofidelity of FMSSV218 is in question. In other words, there are human biological factors, such as neck injury risks that the current standard does not address. The simple act of dropping a helmeted head form to cause an impact of approximately 13 miles per hour does not consider what happens to the human wearing the helmet except for the crown area at the top of the head. Motorcyclists have known this for years. However, NHTSA did not consider it until this year. I would contend that motorcyclists have the most highly vested interest in their own safety and should make informed choices regarding motorcycle helmet use.

Maryland’s Motorcycle Law

Fiscal Impact

In 1992, Maryland enacted the all-rider helmet law primarily due to pressure from the U.S. Congress. The grant and penalty clause of the Intermodal Surface Transportation Efficiency Act of 1991 referred to as ISTEA provided grants to states that enacted motorcycle helmet legislation. But this money did not come without strings attached. In order to receive the grant, Maryland had to provide $1.4 million in matching funds to receive the federal incentive grant of $638,843. Maryland effectively paid $1.4 million to get $639, 000.

The most recent version of the ISTEA legislation contained no ‘black-mail’ provisions threatening to levy penalties or withhold grants from states that did not enact legislation deemed desirable by the U.S. Congress. I am not a constitutional lawyer, but this seems consistent with the constitutional amendment which protects states rights.

Fortunately, there are no such provisions in this year’s version. However, I am distressed by the notion that the U.S. Congress would attempt to withhold funding from states who do not comply with their wishes. At times it seems that members of the U.S. Congress have forgotten whose pockets the money they are withholding came from on the first place. It came from individual taxpayers in individual states!

The Courts

Many people would think that complying with this law is no big deal. The law says wear protective headgear, so go buy a helmet, wear it, and be happy.

Well it’s not really that easy. The current law states, “An individual may not operate or ride on a motorcycle unless the individual is wearing protective headgear that meets the standards established by the Administrator. The standards established by the Administrator rely on the Federal Motor Vehicle Safety Standard (FMVSS) 218. A court case, Lewis v. Ferro, and the subsequent Maryland Court of Appeals decision leaves me extraordinarily confused regarding what complies with this standard.

The Court of Appeals of Maryland decision specifically states:

At some point in 1994, the Federal Department of Transportation published a brochure on motorcycle helmets, a copy of which appellee obtained and placed into evidence. Does Your Helmet Pass the Test: A Safety Guide, U.S. Department of Transportation (1990). In that brochure, the Department noted that manufacturers are required to certify that their helmets meet or exceed the requirements of FMVSS218 but also pointed out that ‘some helmets carry the DOT label even though they do not meet the requirements. The brochure continues, however, that , in 1994, the National Highway Traffic Safety Administration had tested ‘all known helmets available in the marketplace’ and it then lists, by brand and model, each helmet tested and how it performed”

I looked for the brochure on the NHTSA web site and in my favorite motorcycle shops. I didn’t find any readily available copies. However, I did have an old copy of the brochure. Curiosity got the best of me and I took a look. I didn’t have to go any further than my own garage to become confused.

Prior to the trip to the garage for my helmet, I obtained a listing from the NHTSA Office of Vehicle Safety Compliance for 1994, the same year as the published brochure. This information indicated that 71% of the helmets tested failed. A quick tally of helmets listed in the brochure indicated that 8% failed. Why the HUGE discrepancy in information about the same topic from the same agency. What purpose was served by publishing a brochure without reliable information to substantiate it.

A little closer scrutiny indicated that in an alarming number of instances the brochure states that a helmet passed the test where the compliance report indicates the opposite. For example, the very first item, the AGV helmet Model AG-100, passed according to the brochure and failed according to the compliance report.

Now back to the trip to the garage. I personally own an HJC helmet Model FG-2. For 1994, the compliance reports indicate that it both passed and failed testing. Which test am I supposed to rely on? This also does not address the fact that the label inside the helmet indicates that it was manufactured in 1991. Does it comply with the standard? I don’t know. Your guess is as good as mine and that of the policeman who pulls me over for what might be a helmet violation.

I am outraged that by all appearances it seems that I am being misled by a Federal Government agency. I am no less outraged that a Maryland law depends on what appears to be very undependable information.

So what to the do legal scholars say about this decision? One example is a review of Lewis v. Ferro published by Gregory P. Jimeno in the Law Forum Journal from the University of Baltimore School of Law. He summarizes the decision as follows:

Summer 1998, Issue 28.2

The court’s decision appears to neglect a primary purpose behind the Maryland statute. The General assembly originally required the publication of an approved headgear list to inform the public as to which specific types were acceptable. The helmet law has undergone changes through the years, but the publication provision has remained intact since 1968. The effect of this decision will be to place the burden on the citizen to investigate which type of headgear is acceptable, instead of the MVA publishing a list.

The current Maryland helmet law depends on the whim of a Federal Government Agency that recognizes faults with their own testing procedure. Time-consuming research has uncovered the unsettling possibility that not only is FMSSV 218 arcane and difficult to understand, but it is quite likely that the information that we are required, by law, to rely upon is incorrect or misleading.

Recommendations

I learned a long time ago not to offer criticism unless you are willing offer a solution in turn. So I am taking my own advice and offering suggestions that will enhance rider safety. They include:

Continue the admirable job done by the Motor Vehicle Administration in providing training to both new riders and experienced riders via the Motorcycle Safety Program. The Motorcycle Safety Program started in 1985. Accident information provided early suggests that the safety program has been instrumental in reducing accidents and subsequent injuries and fatalities.
Raise awareness of all members of the motoring public that they share the road with both large and small vehicles. Encourage them to understand the limitations of not only their own vehicle, but of the vehicles around them.
Encourage educational programs that educate drivers and riders regarding alcohol awareness.
Provide information about safety techniques and equipment that allow motorcyclists to make informed riding decisions and appropriate consumer decisions.
Continue the downward trend in the number of accidents that occur.
Conclusion

Motorcycle helmets do not prevent accidents. Motorcycle accident rates have decreased dramatically and subsequently so have injuries and fatalities. If you don’t have an accident you won’t get hurt.

Riding and driving on public roads is a privilege given to the people of Maryland by their government. Serving on the legislature is a privilege given to legislators by the people of Maryland. In the spirit of this reciprocal relationship and as your riding constituents we request that you recognize us as the defenders of our own rights and safety.

We have taken your challenge to decrease accidents, injuries, and fatalities. We as motorcyclists in Maryland, nation-wide, and possibly worldwide have demonstrated with tangible and obvious results that we heard you. In Maryland the number of accidents declined from over 3000 in 1985 to less than 900 in 1996 in response to this message.

Legislative, public safety, insurance, and medical organizations presented us with a challenge. We responded with overwhelmingly positive results. Now it is our turn to offer a challenge. Since motorcyclists have demonstrated that we are serious, committed, and responsible for our own safety, we implore you to take one step further. Allow Voluntary Motorcycle Helmet Use for Adult Motorcyclists. Vote Yes for SB 239.