I. ASSIGNMENTS OF ERROR
1) District court erred in denying appellant’s Motion to Dismiss Notice of Infraction on the basis that the Seat Belt Statute, RCW 46.61.688, as originally passed by Laws 1986 chapter 152 §1, as amended by Laws 1990 chapter 250 §58, and as amended by Laws 2002 chapter 328, is unconstitutional. Issues pertaining to this error are:
a) Whether RCW 46.61.688, as originally passed in 1986 and as amended since, violates the right to due process of law guaranteed by the Fourteenth Amendment and by Article I Section 3 of the Washington Constitution on grounds that it is too vague.
b) Whether Laws 1990 chapter 250 §58, which amended RCW 46.61.688, because the provision affecting the Seat Belt Statute is outside the subject of the bill, in violation of Article II Section 19 of the Washington Constitution.
c) Whether RCW 46.61.688, as originally passed in 1986 and as amended since, violates the right to due process of law guaranteed by the Fourteenth Amendment and by Article I Section 3 of the Washington Constitution on the grounds that it denies the citizenry of their fundamental right to choose which set of risks they shall accept without promoting any legitimate interest of government.
d) Whether it is appropriate to report on the abstract of driving record the actions of a passenger and should such be considered for any license to drive a motor vehicle.
II. STATEMENT OF THE CASE
On
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III. ARGUMENT
Issue
1:
RCW 46.61.688 is Void for Vagueness
Several district and superior courts have found that the seat belt statute, RCW 46.61.688, as originally passed by Laws 1986 chapter 152 §1, as amended by Laws 1990 chapter 250 §58, and as amended by Laws 2002 chapter 328, to be unconstitutional in violation of the right to due process of law guaranteed by the Fourteenth Amendment and by Article I Section 3 of the Washington Constitution on grounds that it is too vague.
Not all automobiles come equipped with seat belts with shoulder straps nor are all automobiles required to. Passenger automobiles manufactured before January 1, 1964 are not required to have seat belts at all, RCW 46.37.510(1). Passenger automobiles manufactured between January 1, 1964 and January 1, 1968 are not required to have shoulder strap harnesses attached to the seat belts for the front seat positions, RCW 45.37.510(4). The Washington State Patrol (WSP) may excuse some automobiles from such requirements, RCW 45.37.510(5). The owner of an automobile manufactured before January 1, 1964 may, at his option, have seat belts installed provided they meet the current minimum standards of the WSP and the United States Department of Transportation (USDOT), RCW 45.37.510(6).
As originally passed in 1986, RCW 46.61.688(7) provided that enforcement of the seat belt statute can be accomplished only as a secondary violation when the driver of a motor vehicle has been detained for a suspected violation of different statute. The 1990 revision did not change this provision. Laws 2002 chapter 328 deleted this provision. Pursuant to this latest change, WSP troopers and other police officers may enforce RCW 46.61.688 by stopping those vehicles in which they observe drivers or passengers riding in the front seat without the shoulder strap visible. However, if a vehicle comes equipped with a seat belt that does not have a shoulder strap, having been manufactured between January 1, 1964 and January 1, 1968, or comes equipped with no seat belt at all, having been manufactured before January 1, 1964, then the police officer cannot establish probable cause of a seat belt violation based upon his observation. Passengers in a pre-1964 car, such as a 1957 Chevrolet Bel Air, are not subject to fines of $101 for failing to wear seat belts. Public transit, including the busses operated by King County Metro, are large automobiles where the passengers do not have the opportunity or requirement to wear seat belts. Such busses are apparently not required to be equipped with seat belts, although RCW 46.61.688(1)(a) includes busses within the definition of motor vehicle. It is not clear in the statute why busses are exempt from the seat belt requirement or even if they are in fact exempt. Perhaps the WSP has exempted busses and their passengers from the requirement of wearing seat belts pursuant to RCW 46.61.688(8), but this is not clear to the average citizen. Bus passengers are not subject to fines of $101 for not wearing seat belts while riding in such large automobiles.
Yet in a collision, the passengers in a 1957 Chevrolet Bel Air or a public bus who are not wearing seat belts are subject to the same risk of injuries that result from flying about as are passengers in post-1964 automobiles who fail to wear the available seat belts.
RCW 46.61.688(2), as originally passed by Laws 1986 chapter 152 §1, and not amended since, reads:
This section only applies to
motor vehicles that meet the manual seat belt safety standards as set forth in
federal motor vehicle safety standard 208. This section does not apply to a
vehicle occupant for whom no safety belt is available when all designated
seating positions as required by
federal motor vehicle safety standard 208 are
occupied.
Where South Pacific District Court, Skagit County Superior Court, and Snohomish County Superior Court have found RCW 46.61.688 to be unconstitutionally vague is that it is not clear in which automobiles the driver and passengers are required to wear seat belts, because of the way federal motor vehicle standard 208 is written. Also unclear are the exemptions for busses and other automobiles that a non-elected police agency, the WSP, can promulgate without going through the legislative or citizen initiative process as required by Article II of the Washington Constitution for the enactment of state-wide laws. These decisions arise in motions to suppress evidence found during searches of automobiles stopped solely for observation of seat belt violations brought in criminal cases. However, if the statute is so unconstitutionally vague as to not provide a police officer with the probable cause necessary to search a vehicle under the Fourth Amendment and under Article I Section 7 of the Washington Constitution, then it does not support any infraction for failure to wear a seat belt.
Judge Douglas E. Goelz in State v. Keenan,
South Pacific District
Court,
In relevant part the
seat belt law for the
State of
46.61.688 Safety Belt, use required
– Penalties – Exemptions
(2) This section only applies to motor vehicles that meet the manual seat belt safety standards as set forth in federal motor vehicle safety standard 208. (Emphasis added) This section does not apply to a vehicle occupant for whom no safety belt is available when all designated seating positions as required by federal motor vehicle safety standard 208 are occupied.
The proper citation for Federal Motor Vehicle Safety Standard 208 is 49 USC part 571 section 571.208. The States failure to properly cite the federal regulation renders the law unconstitutionally vague and violates due process.
A statute violates due process if it
fails to afford citizens fair warning of proscribed conduct.
(3) A statute is unconstitutional if it fails to provide fair notice; if the standards to which a citizen must conform are so inaccessible that an average person could not be expected to discover them by reasonable research efforts, then the statute does not provide the requisite notice. See In re Powell, 92 Wash.2d 882, 888-89, 602 P.2d 711 (1979); State v. Dougall, 89 Wash.2d 118, 570 P.2nd 135 (1977).
The
administrative regulation for protective helmets in
(1) Federal Motor Vehicle Safety Standard 218 is hereby adopted by reference as the standard for motorcycle helmets.
Former WAC 204-10-040. In order to comply with the statute and the State regulations, an ordinary citizen would have to know where to find the Federal Motor Vehicle Safety Standards, or Standard 218. Counsel and the court found it because we are aware of the Code of Federal Regulations; the index therein cites us to chapter 49, section 571.218. The regulation itself consists of sections 1 through 7.3.4 and covers 16 pages. Within those sections are topics such as scope, purpose, application, definitions, requirements, impact attenuation, penetration, retention system, configuration, projections, labeling, helmet positioning index-selection of appropriate headform-reference marking helmet positioning-conditioning-impact attenuation test-penetration test and retention system test. Also included are 7 ˝ pages of diagrams and 4 pages of charts.
The regulation fails to inform the average citizen of the location or legal citation of the federal standard it adopts. We have not been advised how a citizen of common intelligence should discover this information. RCW 46.37.530, as implemented through WAC 204-10-040, fails to provide citizens with the fair notice required for due process.
The defendant in this case was stopped because he was not wearing a seatbelt. Whether he had to wear a seatbelt depends on the car he is driving. By reading RCW 49.61.688(2) he could not reasonably ascertain if his car was one in which passengers were required to be belted. Clearly the particular facts of this case give this defendant standing to challenge the constitutionality of the statute and distinguishes it from the facts in City of Bremerton v. Spears 134 Wash.2d 141 (1998). The flaw in the seat belt law is exactly the same flaw condemned by the Court of Appeals in the helmet law.
Judge Susan Cook made similar findings on May 15, 2003 in State v. Eckblad, Skagit County Superior Court No. 03-1-00106-5, now before the Supreme Court of Washington in No. 74109-3. Judge Castleberry of the Snohomish County Superior Court made a similar finding. For the same reasons, this Court should also find this statute to be unconstitutionally vague and dismiss the Notice of Infraction.
Issue
2: Laws 1990 chapter 250 §58 Amending
RCW 46.61.688 is Void As Outside the Subject of the Bill in Violation of
Article II Section 19 of the
Washington Constitution
The 1990 revision should be found invalid because it was passed in violation of Article II section 19 of the Washington Constitution. Article II Section 19 requires that each bill shall embrace only one subject and that it be expressed in its title. The title of Laws 1990 chapter 250 reads in significant part:
AN ACT relating to vehicle license plates and license plate emblems,
This
is a restrictive title, not a general title,
Amalgamated Transit Union Local 587 v. State of Washington,
(2000) 142
Issue
3:
RCW 46.61.688 Offends Substantive Due
Process by Infringing on Fundamental Rights Without Promoting Legitmate
Interest of Government
In the event of a collision, which did not happen in this instance, any injuries Mr. Knight may suffer would not include being “hanged” by the shoulder strap riding across his neck. Neck injuries, including fatal neck injuries, sometimes happen with passengers who wear seat belts equipped with shoulder straps. While State Patrol troopers experienced in responding to accident scenes will argue that such neck injuries usually do not happen, it is not the same as saying they never happen and cannot happen.
It is generally recognized that airbags and seat and shoulder strap belt combinations reduce injures in full head on collisions. This is the type of collision where the center of mass of one vehicle and its vector of travel is in alignment or near alignment with the center of mass of the other vehicle and its vector of travel. However, most accidents are not of this type. Many accidents occur where the vectors of travel are several inches to several feet apart. An example of the off-center type of collision is where one vehicle drifts over the centerline of a two way road and the other vehicle swerves to miss. The left headlight of one vehicle “kisses” the left headlight of the other vehicle. At a high closing speed, the vehicles spin and the drivers and passengers are thrown sideways. The airbags deploy, but are of little value in reducing injuries. In this scenario, the airbag can increase injuries, even for large passengers. While the shoulder strap is designed to keep the upper torso from flopping forward, in an off-center collision and in a side impact collision, the shoulder strap can cause neck injuries, even death due to such neck injuries.
This can be likened to being “hanged”. The immediate consequence for an inmate executed by hanging is the fracture of the neck spine and the resultant severing of the spinal cord. Sometimes this happens as a result of wearing a shoulder strap in an off-center collision.
The lap belt improves chances of survival and reduces injury in almost all kinds of collisions because it prevents the passenger from flying about. However, a statutory lap belt requirement is virtually impossible to enforce. The police cannot observe whether the lap belt is being worn, therefore, cannot stop a vehicle on suspicion that the lap belt is not worn. Thus drivers of vehicles built between 1964 and 1968 are generally not affected by RCW 46.61.688. When the police pull over such a vehicle, the driver will often remove the lap belt so as to access his wallet and the driver’s license inside. Therefore, the only practical enforcement of RCW 46.61.688 involves vehicles with shoulder straps. However, with shoulder straps, RCW 46.61.688 mandates that drivers and passengers in such vehicles accept one set of risks and denies them the option of choosing their own set of risks. It therefore does not promote any legitimate interest of government while denying the fundamental right to choose which risks one may expose himself or herself to.
In a free society adult citizens are allowed to make their own decisions as to which courses of action to take and to accept the consequences of either decision. That the consequences of such decisions may not be pretty to those who respond to accident scenes does not give a government in a free society the right to dictate which course of action, and therefore which set of risks, the citizens must take.
Article I Section 24 of the
Washington Constitution protects the right of those citizens who have not been
convicted of any felony or domestic violence misdemeanor, and who are not under
certain types of restraining order, to keep and bear arms.
State
v. Krzeszowski, (2001) 106
To better illustrate the distinction here, consider this: A statute prohibiting people from operating automobiles faster than the posted speed limit or from operating automobiles while impaired serves a valid public interest in a free society. Such behavior places persons OTHER than the party engaging in such behavior at risk. However, whether such driver is wearing a seatbelt has NO IMPACT on the impact he may have on OTHER people. Therefore, RCW 46.61.688 does not serve a valid public interest.
We regularly allow people to
The promise of a free society is freedom, not safety. To attempt to achieve perfect safety by dictating to citizens how they may conduct their lives to avoid risk is to give up the freedom. That is part of what Benjamin Franklin meant when he said that a society that gives up essential liberties for security deserves and receives neither.
Issue
4: Behavior as Passenger Irrelevant for
Purposes of Abstract of Driving Record
Mr. Knight was a passenger in the automobile when he was cited for not wearing a seat belt. For any conviction of a seat belt violation while riding as a PASSENGER to be placed on the driver’s abstract as provided by RCW 46.61.688(5) is patently absurd and serves no valid interest of government. He was not operating the motor vehicle, therefore he presented no greater danger to other persons on the roads and highways than an unbelted sack of groceries sitting in the same seat.
IV. CONCLUSION
For the reasons stated herein, the findings below should be vacated or reversed.
Respectfully submitted this 26th day of January 2004.
__________________________
Roger W. Knight, pro se
See also www.antipeonage.0catch.com