For Your Protection

I spent some of my afternoon yesterday in traffic court. The criminal counts in a client’s case had been dismissed by the prosecutor, but the civil count remained. The court set it for a civil traffic hearing regarding my client’s alleged violation of A.R.S. 28-964(A). He was charged with riding a motorcycle in Mesa in September while wearing a helmet with the visor up. I’m not so sure that’s illegal.

I pulled up to Mesa’s nice new courthouse and parked in their nice new parking garage. When I walked up and opened the heavy metal and glass door, it felt expensive. Inside, I took off my belt and put it in a tray along with everything in my pockets. A few chubby security guards mulled about as my belongings went through a nice new x-ray machine and I walked through a nice new metal detector. I wonder what they get paid. I bet all that stuff cost a pretty penny.

When I entered the nice new courtroom, I saw the officer had decided to show up. He was a scrawny old man whose body language spoke volumes. He tensed up and refused to make eye contact or acknowledge my existence, and he immediately began speaking loudly with the court clerk about scheduling some other hearing in that courtroom and having to go to another courtroom some other day. I suppose I was to take away from the exchange the fact he is very experienced in court and friendly with the staff. He came off as exceedingly arrogant and rather inept at pretending to be sociable.

The judge took the bench and dove right into the hearing. The officer testified he saw my client riding with his visor up, so he stopped him right away. My client admitted to the officer that the visor was up, explaining he only put it down when he was on the highway. The officer went into testimony about the dismissed count, presumably for the sole purpose of making my client look bad. When he was finally done, he looked over at me with a weaselly smirk, staring while exuding a condescending aura of intense self-satisfaction.

On cross-examination, the officer described his unmatched knowledge of motorcycles and motorcycling. He’d been riding since 1776 and wrote all of the Arizona Revised Statutes pertaining to bikes himself, or something like that. He couldn’t recall the weather the day he stopped my client, not even whether it was freezing or one hundred and twenty degrees, but his superhuman powers of observation enabled him to determine and recall that my client’s motorcycle’s protective windscreen was precisely fourteen inches below my client’s eye level as he rode. He’s measured at least sixty billion windshields in his day, or something like that. My client’s was plainly insufficient, an egregious violation of the law. He admitted he does not cite people when their visors are up while stopped, but that he always cites people who are moving with their visors up. That was obvious from the statute, apparently.

In reality, not much of anything is obvious from the statute. Here is the pertinent portion:

An operator of a motorcycle, all-terrain vehicle or motor driven cycle shall wear at all times protective glasses, goggles or a transparent face shield of a type approved by the director unless the motorcycle, all-terrain vehicle or motor driven cycle is equipped with a protective windshield.

The term “protective windshield” is not defined anywhere in Arizona’s laws and rules. Neither is the word “wear,” for that matter. Must your helmet simply have the transparent face shield available when you need it, or must it be down at all times? The officer’s opinion that a stopped biker does not violate the law supports the former interpretation rather than the latter, conflicting with his decision to cite my client. No definition are provided in Arizona’s Motorcycle Operator Manual either. Have a look here, if you want. Speaking with several real motorcycle experts, I only succeeded in establishing that no one agrees what the statute does or not require, but that they all feel very strongly about how obviously correct they are.

As for the judge, just like the officer and everyone who feels differently, he knew exactly how to apply the law. He explained he thought that the word “operator” seemed to imply someone on a vehicle that was underway. Whether maneuvering into a parking spot with the visor up and both feet on the ground would constitute a violation to him is still unclear. He then explained he thought that “wear” seemed to imply not just having it as part of the helmet you are wearing, but using it in a way that makes it preventing things from getting your eyes. Finally, he explained he thought that “protective windshield” seemed to imply a windshield that would prevent you from getting things in your eyes. The judge claimed my client’s statement that he only put the visor down on the highway indicated that he knew his visor should be down. The officer welled up with pride as the judge found my client responsible, developing an ear-to-ear grin that lingered even when I later saw him chatting with the security guards in the lobby.

The judge fined my client $150.00 for his terrible misdeed, never once acknowledging my arguments about vagueness, fairness, or notice. It was basically a game to him where he only had to determine if the law could theoretically apply to what my client did. The judge never once considered the legal gymnastics it took for him to reach a finding of responsibility. He unsympathetically brushed off any concerns about whether it was fair to punish an ordinary person for breaking a law that took him so long to interpret and explain. Who cares if one person’s differing interpretation of the statute was reasonable? It didn’t matter to him that the statute isn’t clear and that even I left court still unsure about its application in all sorts of other situations. It didn’t matter that the statute allows selective enforcement by police due to its vagueness. The court clearly saw no problem with the fact that my client could have read the statute, taken a skills course, interviewed twenty experts, sat through court, and still ended up confused about what the law does or does not cover.

Now, my client has to pay $150.00 to a court staffed by people who make far more than he earns because he arguably may have violated a vague law supposedly enacted for the sole purpose of ensuring his safety. What’s even more twisted about that is the fact that, had my client opened his visor on a scorching summer day because he was about to pass out from the heat, he could not have argued he was justified in doing so to avoid greater harm. As I explained a few years ago, there are no justification defenses available to offenses set forth in the title of the Arizona Revised Statutes containing the traffic laws. For his safety, my client is required to comply with the law even when it makes him unsafe. God forbid he get something in his eye. It’s obviously in his best interest to be stopped and harassed by a rude officer then dragged to court for a violating statute he reasonably interpreted to permit what he did before hiring counsel, proceeding with a full-blown hearing, and being ordered to pay $150.00 of his hard-earned money to the bloated City of Mesa government.

Adrian has joked for a while that we should all quit pretending that traffic tickets are about anything other than fundraising. Nice new courthouses and all of the nice new things inside certainly don’t pay for themselves, after all. Adrian proposes an alternative too, a more honest system involving a reverse lottery that we are all obliged to play. The government simply mails out notice at random stating we owe a significant but not excessive amount. We pay up like the good little profit centers we are.

He’s kidding, but I struggle to see how that would be any less fair than what we have now. With our current system, officers who may lack the temperament to wield even slightest authority are free to arbitrarily enforce laws. The government needs our money and is going to steal it no matter what. A random process would at least avoid people being unfairly targeted or left to the whim of officers who may be having a bad day or may just be bad people.

Until we get the lottery system we deserve, I advise you to always ride your motorcycle with your visor down. Even if you think your windshield is sufficient, don’t risk it. There are no standards for what is or is not okay, so you are left entirely at the mercy of whoever stops you and a judge who thinks it’s a game to see if he can find some way to hold you responsible. Instead, the moment you even think about starting the bike, cover your eyes with something. Don’t ever open up that faceshield or remove your glasses or goggles, not even to adjust them or if you have something in your eye. Not even if they become fogged up or dirty and you can’t see a thing. Who cares if you’re going to crash? Who cares if you’re going to pass out? Take them off and you could be cited. For you own protection, of course.