State v. Acker
| Citation | 485 P.2d 1038,26 Utah 2d 104 |
| Decision Date | 03 June 1971 |
| Docket Number | No. 12268,12268 |
| Parties | d 104 STATE of Utah, Plaintiff and Respondent, v. Gary D. ACKER, Defendant and Appellant. |
| Court | Supreme Court of Utah |
Van Sciver, Florence, Hutchison & Sharp, Brian R. Florence, Odgen, for defendant-appellant.
Vernon B. Romney, Atty. Gen., Lauren N. Beasley, Chief Asst. Atty. Gen., Salt Lake City, for plaintiff-respondent.
The defendant appeals from a conviction of violating Section 41--6--107.8, U.C.A.1953 (Replacement Volume 5A). This statute requires any person operating or riding upon a motorcycle on a public highway where the posted speed limit is above 35 miles per hour to wear a crash helmet, etc.
The defendant contends that the statute is an invalid exercise of the police power in that it is an unreasonable infringement of his personal liberty and of his right to use his property as he sees fit. He further contends that the statute violates the equal protection clause of our constitution and is arbitrary and capricious in that one riding a motorcycle upon a street posted for speeds not exceeding 35 miles per hour does not need to wear the helmet. He further contends that the standards set forth for the type of headgear to be worn is not definitely set out.
We think the type of headgear prescribed is sufficiently specified and, besides that, he wore no headgear at all.
If the act is otherwise good, it is not bad because it applies only to those highways where speeds exceed 35 miles per hour. That harm from collisions and other mishaps increases directly as the square of speed is too well known to require any further discussion of this point. The legislature could well determine that 35 miles per hour should be the speed at which helmets would need to be worn in order to preserve life and limb.
The principal question to be answered is whether the legislature can require a motorcycle rider or operator to wear protective headgear at all. The defendant argues that since the statute requires riders as well as operators to wear the device, it must be assumed that the law was enacted solely for the purpose of protecting the individual wearer.
This does not necessarily follow. While it was undoubtedly the intention of the legislature to enact a measure which would protect the life and limb of its citizens, it also is evident that any measure taken which would protect the operator of a motorcycle would tend to avoid collisions with other traffic upon the highway. Even if it were to be assumed that the legislature intended to protect only those who were riding upon the motorcycle from harm, the public certainly has an interest in that regard. Whenever a citizen becomes maimed or is killed, the entire public is affected to some degree. As John Donne suggested, each citizen is a clod of the entire whole, and when one citizen is diminished, we all suffer. Both hospitals and relief rolls are crowded, and it is a proper exercise of police power for the legislature to enact statutes which would tend to keep citizens out of the one and off of the other. Whether the wearing of the helmet is likely to reduce accidents and thus avoid death and maiming is a matter for the legislative body to determine and not for the courts.
It is settled law that a statute is presumed to be constitutional unless it clearly violates some specific provision of the constitution. 1 We are unable to say that the statute clearly violates any provision of our constitution, and from what we have said above, it is obvious that we think the statute is valid.
While the courts of Michigan, Illinois, and Ohio have held motorcycle helmet statutes to be unconstitutional, the overwhelming weight of authority 2 is to the contrary, and Utah should and does align itself with the majority holding. 3
The judgment and sentence of the trial court are affirmed.
I concur. I also concur in what is said generally in the dissent about the erosion of our liberties, but I believe this case, though a topic for lively debate, may be classified as a legitimate subject for regulation within the police power, just as a law would be to prevent the almost synonymous circumstance of suicide. I believe no one successfully would be convincing if he said one's freedom is so sacred as to demand an uninterrupted right to use heroin, or to indulge in scuba diving with dangerous, defective equipment. I believe that the police power is flexible enough reasonably to have included within it certain factual situations that are so hazardous personally to a large segment of the community as reasonably to be the subject of regulation, and that adequate protective headgear for the rapidly expanding number of cyclists in the country reasonably may be numbered among them.
I am unable to agree with the decision affirming the defendant's conviction. It does not address itself to, nor in any way dispose of, Point I as stated in the defendant's brief: that the evidence failed to prove he had committed any crime.
The statute upon which the accusation is based, Section 41--6--107.8(a), Utah Code Annotated 1953, under which the appellant is charged, reads:
No person shall operate or ride upon a motorcycle or motor-driven cycle upon a public highway posted for speeds higher than 35 miles per hour, unless he is wearing protective headgear which complies with standards established by the commissioner of public safety.
Focusing attention upon the emphasized portion of the statute, he states:
* * * there is no evidence whatsoever as proof of the last required element of the offense, i.e., noncompliance with standards established by the Commissioner of Public Safety.
He further argues that he
* * * is unaware of and unable to find any standards in this area that have been established by the Commissioner of Public Safety.
On this first point of his brief defendant is uncontestably correct. There is nothing in the record as to any proof concerning any 'standard established by the Commissioner of Public Safety' nor that any such standard was adopted, or in any manner promulgated and made available to the public. And the State does not even contend that there was in this record any such proof offered or referred to, or in any wise made part of the record. In the absence of proof to establish an essential element of the offense, the conviction cannot properly be sustained.
Proceeding beyond the question of the defendant's conviction: Inasmuch as the statute here in question is a new enactment, on a public issue, and consequently its validity must eventually be passed upon by this court, it does no violence to my sense of procedural propriety that the court go ahead and make an adjudication on this statute. But with respect thereto I desire to make some further observations. The first is that any such statute should state the regulation it imposes with sufficient certainty and clarity that persons of ordinary intelligence will be able to understand and ascertain from the statute itself what it means, and thus be enabled to comply with its requirements. 1 Moreover, it should not delegate the legislative function to some official such as a 'Commissioner of Public Safety' so that he might, by his own ukase, set arbitrary or unreasonable standards which are neither known nor made reasonably accessible to the people they affect. Beyond this, even if such an arbitrary procedure were accepted as proper, there certainly should be provision made for some method of publicizing, or otherwise advising or making available to the public, information concerning the standard set. And all of the foregoing should be ascertainable within the four corners of the statute itself. The statute as set forth herein does not meet that test and is unenforceable for vagueness. 2
I would decide this case on the bases stated above. Nevertheless, I appreciate the fact that the decision of the court goes to the heart of a more fundamental matter: Assuming as a hypothesis that there was adequate proof of violation of a properly drafted law requiring motorcyclists to wear helmets, would a conviction thereunder be sustained? This, I confess, poses an interesting and troublesome question. It is another example of the age-old and frequently-recurring controversy between the rights of an individual as compared to the rights of the group. In my opinion the answer depends upon where the greater emphasis is placed.
I have no reason to disagree that it is desirable for a motorcyclist to wear a helmet any more than that it is desirable for him to brush his teeth, wash his ears, or wear a coat in...
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