535 P.2d 1337 (N.M. 1975), 10033, City of Albuquerque v. Jones

Docket Nº:10033.
Citation:535 P.2d 1337, 87 N.M. 486, 1975 -NMSC- 025
Opinion Judge:[9] Mcmanus
Party Name:CITY OF ALBUQUERQUE, Plaintiff-Appellant, v. Roy T. JONES, Defendant-Appellee.
Attorney:[6] Ronald R. Walker, Albuquerque, for plaintiff-appellant. [7] Emmett C. Hart, Albuquerque, for defendant-appellee.
Judge Panel:MONTOYA and MARTINEZ, JJ., concur.
Case Date:May 14, 1975
Court:Supreme Court of New Mexico
 
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Page 1337

535 P.2d 1337 (N.M. 1975)

87 N.M. 486, 1975 -NMSC- 025

CITY OF ALBUQUERQUE, Plaintiff-Appellant,

v.

Roy T. JONES, Defendant-Appellee.

No. 10033.

Supreme Court of New Mexico.

May 14, 1975

[87 N.M. 486] Ronald R. Walker, Albuquerque, for plaintiff-appellant.

Emmett C. Hart. Albuquerque, for defendant-appellee.

OPINION

McMANUS, Chief Justice.

Jones was charged in the Albuquerque Municipal Court with violation of § 71.11 [87 N.M. 487]

Page 1338

of the Traffic Code of the City of Albuquerque, which requires the operator of a motorcycle to wear an approved safety helmet. The municipal court held that ordinance unconstitutional; the district court affirmed, and the City appeals.

Section 71.11, supra, reads as follows:

'No person shall operate a motorcycle, motor driven cycle or motor scooter unless he is wearing a safety helmet securely fastened on his head in a normal manner as headgear and meeting the standards specified by the Commissioner of Motor Vehicles of the State of New Mexico.'

The district court found that Jones was 32 years of age, and that on December 28, 1973, he was operating a motorcycle within the city limits of Albuquerque, and while doing so was not wearing an approved motorcycle helmet. Similar ordinances have been construed by the Supreme Court of the United States and by appellate courts in over half of the states. In Simon v. Sargent, 409 U.S. 1020, 34 L.Ed.2d 312, 93 S.Ct. 463 (1972), the Supreme Court upheld by memorandum a three-judge district court decision that a Massachusetts statute requiring a motorcyclist to wear a safety helmet did not violate the due process clause of the Fourteenth Amendment, since the subject matter of the enactment did not lie beyond the reach of the state's police power, nor the equal protection clause as a rational basis for the law was easily discernible. We interpret this as a clear direction by the Supreme Court that ordinances such as the one here involved are not violative of the federal Constitution.

In State v. Acker, 26 Utah 2d 104, 485 P.2d 1038 (1971), the court was considering a statute very similar to the ordinance in question in this case. The court there said:

'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...

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