I am frequently asked by riders what to do if they are stopped for wearing an “illegal helmet.” By illegal they always mean that the helmet is not DOT certified. My answer is always the same. Your helmet is perfectly legal in Virginia.
However, before I explain why your helmet is perfectly legal, let me say that this is not an article taking one side or the other on the great helmet debate that rages throughout the motorcycling community. Motorcyclists differ in their opinions on which type of helmet a rider should wear, and even whether or not a motorcyclist should be able to ride without a helmet at all. This article is not meant to take a position with regard to either of those debates. It is merely an attempt to clarify the applicable law in Virginia as it pertains to helmets so that each rider can make their own decision, and so that if you are stopped and ticketed for an illegal (or more often improper) helmet, you will be armed with the information to avoid paying a ticket for a violation that you did not commit.
Section 46.2-910 of the Code of Virginia requires that every operator and passenger on a motorcycle being operated on the highways of Virginia (highways includes all areas open to the public for motor vehicle travel) must wear a protective helmet. The helmet must meet or exceed any one of three helmet standards; 1) Department of Transportation (DOT), 2) Snell Memorial Foundation, or 3) The American National Standards Institute (ANSI). That’s it. That is the totality of the requirements for a motorcycle helmet to meet Virginia code. Notice that the statute says that the helmet must meet or exceed any one of those standards. It does not say it must be approved by any of those entities, nor does the statute require that the helmet be marked, labeled, or certified by any of those entities. Therefore, the mere fact that your helmet does not have a sticker on it does not render it illegal, nor does it give an officer the right to pull you over or ticket you. However, if one does, do not argue, be polite and take the ticket. This is a battle to fight in court, not on the side of the road.
In order to be convicted of a helmet offense (short of not wearing one at all) the state is going to have to show that your helmet does not meet or exceed each of the above standards, which differ from one another. That means that the officer will have to know and understand each of the above standards. That is not going to happen. The standards are performance standards; they are not a guideline on how to build a helmet. The DOT and Snell standards can be obtained online, however, I cannot find anyone who has been able to find the ANSI standards. Even if they could, they are performance standards as well. What that means is that the state cannot prove its case. Often an officer will testify that he could tell that the helmet is illegal due to the weight of the helmet or the thickness of the liner. However, none of the three applicable standards dictate any certain weight for the helmet, nor do they require any particular thickness for the lining. They are silent on those issues. The standards focus on how the helmet distributes the force of an impact. There is only one way to determine that, and that is to have the helmet tested. There are three problems with that. The first is that there are no testing facilities in the Commonwealth of Virginia. The second is that the procedure necessitates destroying the helmet. The third is that the police do not have the right to take the helmet for testing in the first place without probable cause that it does not meet any of those three standards. Unless they know and understand those standards, the requisite probable cause does not exist.
In short, section 46.2-910 of the Code of Virginia is a very vague statute when it comes to mandating the types of helmets which may be worn in Virginia. In fact, two jurisdictions in Virginia, Rockingham County and the City of Newport News, have declared 46.2-910 so vague that it is unconstitutional in terms of enforcing any type of helmet which may be worn. We are expecting a third jurisdiction, Radford, to give an opinion on the matter within a month.
So the next time someone suggests that your helmet is illegal because it is not DOT certified, point them to Section 46.2-910. You could also point to the fact that their helmet is not DOT certified either given the fact that DOT does not certify helmets, but that is an issue we can tackle in the future. Once again let me say that I am not advocating any particular helmet. I am advocating knowing the laws of your state and what your rights are as a Virginia Motorcyclist.
If you have any further questions or comments concerning this article or any other matters concerning your rights as a motorcyclist in Virginia, please contact me at 1-800-321-8968 or at matt@tommcgrathlaw.com
The preceding is for informational purposes only and should not be considered legal advice. The laws governing the above may be different in your state.