Bennett v. Commonwealth

Decision Date21 August 2012
Docket Number1806–11–1,1809–11–1,Record Nos. 1803–11–1,1815–11–1,1816–11–1,1805–11–1,1811–11–1,1808–11–1,1812–11–1,1814–11–1,1807–11–1,1817–11–1.,1813–11–1,1810–11–1,1804–11–1
Citation731 S.E.2d 40,60 Va.App. 656
PartiesMatthew Thomas BENNETT v. COMMONWEALTH of Virginia William James Bowers, Jr. v. Commonwealth of Virginia John W. Brown v. Commonwealth of Virginia Michael J. Klebak v. Commonwealth of Virginia Carl Jay Klein v. Commonwealth of Virginia Scott M. Lafountaine v. Commonwealth of Virginia Edward J. Lemmon v. Commonwealth of Virginia Paul A. Maroon v. Commonwealth of Virginia Arnold E. Meadows, s/k/a Arnold E. Meadows, Jr. v. Commonwealth of Virginia Ronald Lee Moore v. Commonwealth of Virginia Mark Darrel Osenbaugh v. Commonwealth of Virginia Kristina G. Price v. Commonwealth of Virginia Michael H. St. Clair v. Commonwealth of Virginia Paul E. Warren v. Commonwealth of Virginia Richie D. Wells, s/k/a Ritchie D. Wells v. Commonwealth of Virginia.
CourtVirginia Court of Appeals

OPINION TEXT STARTS HERE

Matthew D. Danielson (Jeffrey M. Summers; McGrath & Danielson, on briefs), for appellants.

Katherine Quinlan Adelfio, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General; Donald E. Jeffrey, III, Senior Assistant Attorney General, on briefs), for appellee.

Present: ELDER, FRANK and HUMPHREYS, JJ.

HUMPHREYS, Judge.

Matthew Thomas Bennett, William James Bowers, Jr., John W. Brown, Michael J. Klebak, Carl Jay Klein, Scott M. Lafountaine, Edward J. Lemmon, Paul A. Maroon, Arnold E. Meadows, Ronald Lee Moore, Mark Darrel Osenbaugh, Kristina G. Price, Michael H. St. Clair, Paul E. Warren, and Richie D. Wells (hereafter referred to collectively as appellants and individually by last name) appeal their convictions in the Circuit Court of the City of Virginia Beach (trial court) for failing to comply with Virginia's motorcycle helmet law, Code § 46.2–910.1 On appeal, appellants contend that the trial court erred (1) “in convicting [each appellant] because Code § 46.2–910 does not require that a motorcycle helmet be certified, approved or labeled/marked by any entity,” (2) “in finding that the Commonwealth proved beyond a reasonable doubt that [each appellant] violated Code § 46.2–910 [because] [t]he Commonwealth failed to prove that [each appellant's] helmet failed to meet or exceed each of the three applicable standards under that statute,” and (3) “when it equated the lack of labeling [with] proof beyond a reasonable doubt that a motorcycle helmet does not meet or exceed any particular standard.”

Additionally, Bennett contends that the trial court erred in convicting [him] as [his] statement that he knew he was not wearing a helmet is not evidence which proves beyond a reasonable doubt that his motorcycle helmet failed to meet or exceed each of the three applicable standards listed in [Code § 46.2–910].”

Klebak contends that the trial court erred in convicting [him] as [his] statement that he knew he was not wearing a ‘real’ helmet is not evidence which proves beyond a reasonable doubt that his motorcycle helmet failed to meet or exceed each of the three applicable standards listed in [Code § 46.2–910].”

Klein contends that the trial court erred in convicting [him] as [his] statement that he knew he was not wearing a ‘real helmet’ is not evidence which proves beyond a reasonable doubt that his motorcycle helmet failed to meet or exceed each of the three applicable standards listed in [Code § 46.2–910].”

Lemmon contends that the trial court erred in convicting [him] as [his] statement that he knew he was wearing a ‘novelty helmet’ is not evidence which proves beyond a reasonable doubt that his motorcycle helmet failed to meet or exceed each of the three applicable standards listed in [Code § 46.2–910].”

I. Background

These appeals center around traffic summonses issued to each of the appellants for failing to wear a proper helmet while operating or riding as a passenger on a motorcycle. Under the relevant statute, Code § 46.2–910, both operators and passengers on motorcycles are required to wear protective helmets “which meet or exceed the standards and specifications of the Snell Memorial Foundation [ (“Snell”) ], the American National Standards Institute, Inc. [ (“ANSI”) ], or the federal Department of Transportation [ (“DOT”) ].” Trooper Ross Thompson (“Trooper Thompson”) issued a majority of the summonses involved in these appeals and was the primary witness called by the Commonwealth to testify at trial.2 Trooper Thompson testified that he read the Snell and DOT standards in their entirety and as much of the ANSI standards as he could without purchasing them.3

Although Trooper Thompson did not recite the particulars of each standard, he testified without objection that generally the Snell requirements mirror the DOT requirements. However, he went on to explain that the standards are not alike and that the Snell and ANSI standards are more stringent than the minimum standards of the DOT. Trooper Thompson also testified that the DOT standards require certain labeling reflecting that the helmet meets the DOT standards. With regard to each appellant, Trooper Thompson indicated, again without objection, that their helmets did not meet any of the standards. However, he was unable to articulate which particular part of the various standards the helmets failed to meet. Instead, he opined that he could tell just by looking at them.

The appellants called two expert witnesses to testify regarding the standards. Bruce Biondo (“Biondo”) is an employee with the Department of Motor Vehicles as part of the Virginia Rider Training Program. He testified that he has read the Snell and DOT standards, and he has looked over the ANSI standards but not read all of them. Biondo explained that the three standards are engineering standards, not manufacturing standards. As such, they relate to the results of testing helmets, not their actual construction. Because of this, he opined that there is no way that one could look at a helmet and determine that it does not meet the standards. Furthermore, while manufacturers put DOT stickers on helmets that are DOT certified,4 consumers can take the stickers off or cover over them.

James Cannon (“Cannon”) also testified as an expert for the defense. Cannon is employed by the Virginia Commonwealth University Transportation Safety Training Center teaching motorcycle accident reconstruction, and serves in several other positions relating to motorcycle safety with various organizations. Cannon testified that he has read and is familiar with all of the DOT, Snell, and ANSI standards. He confirmed that the standards are testing standards rather than manufacturing standards, and thus, there is no way to tell that a helmet does not meet the standards just by looking at it and without subjecting it to actual testing. Cannon also testified that the ANSI standard was promulgated prior to the DOT standard and that it was similar but not as stringent. Cannon then clarified what it means to be DOT certified:

DOT helmets are self-certified by the manufacturer. Every year DOT selects 40 helmets at random and tests them. Between 45 and 55 percent of those helmets fail every year when they test them. So the fact that it carries a DOT marking only means that the guy that poured the fiberglass in the molds says it meets those standards. There's no evidence that any like models have ever been tested.

Furthermore, the manufacturers do not have to go through the testing for each and every make and model of helmet.

During the trials, counsel for the appellants made a motion to strike, arguing that the statute does not require that helmets bear any labeling indicating their satisfaction of the Snell, ANSI or DOT standards. The trial court listened to arguments on the issue from each party, and ultimately ruled that the statute requires helmets to be labeled indicating their compliance with one of the standards.5 The trial court then convicted each of the appellants under Code § 46.2–910, and the appellants noted these appeals.

II. Analysis
A. Code § 46.2–910 and Labeling

On appeal, the Commonwealth concedes error and suggests reversal in every case except those of Brown and Klein. However, [w]e have no obligation to accept concessions of error, and, to be sure, we would never do so if the issue were a pure question of law.” Copeland v. Commonwealth, 52 Va.App. 529, 531, 664 S.E.2d 528, 529 (2008) (citation omitted). Because these appeals require us to interpret Code § 46.2–910, we must perform our own analysis and determine if a valid basis supports the Commonwealth's concession. A question of statutory interpretation is subject to review de novo on appeal. Wright v. Commonwealth, 275 Va. 77, 80–81, 655 S.E.2d 7, 9 (2008).

The appellants' first and third assignments of error can be simplified into one basic question: was the trial court correct in concluding that Code § 46.2–910 requires that operators and passengers on motorcycles wear protective helmets that bear a label indicating their satisfaction with certain safety standards? Code § 46.2–910(A) states, in relevant part,

Every person operating a motorcycle shall wear a face shield, safety glasses or goggles, or have his motorcycle equipped with safety glass or a windshield at all times while operating the vehicle, and operators and any passengers thereon shall wear protective helmets.... The windshields, face shields, glasses or goggles, and protective helmets required by this section shall meet or exceed the standards and specifications of the Snell Memorial Foundation, the American National Standards Institute, Inc., or the federal Department of Transportation.

No motorcycle operator shall use any face shield, safety glasses or goggles, or have his motorcycle equipped with safety glass or a windshield unless of a type ... that meets or exceeds the standards and specifications of the Snell Memorial Foundation, the American National Standards Institute, Inc., or the ...

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