Knight v. State Motion to Dismiss Seat Belt Infraction

KING COUNTY DISTRICT COURT, KENT DIVISION

STATE OF WASHINGTON, )

) No. I 3697882

plaintiff, )

) MOTION TO DISMISS

v. ) NOTICE OF INFRACTION

)

ROGER W. KNIGHT, )

)

defendant. )

____________________________________)

COMES NOW ROGER W. KNIGHT, to move for dismissal of the Notice of Infraction.

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 set 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, Pacific County, No. C3910/13746 found on March 13, 2003:

In relevant part the seat belt law for the State of Washington 46.61.688 states:

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. Spokane v. Douglas 115 W2d 171 (1990). Fair notice requires that a citizen be able to discover the standard sought to be enforced by reasonable research efforts. In re Powell 92 W2d 882, 888-89, State v. Dougall 89 W2d 118 (1977), State v. Maxwell 74 Wash.App.688 (1994). Maxwell is directly on point.

(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.2^nd 135 (1977).

The administrative regulation for protective helmets in Washington stated in its entirety:

(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 ½ 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 46.61.688(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.

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 Wash. 2d. 183, 216-217, 11 P. 3d. 762 and State v. Thomas, (2000) 103 Wash. App. 800, 808, 14 P. 3d. 854. A restrictive title includes where a part or branch of a subject is carved out and selected as the subject in the title, Thomas at 103 Wash. App. 808. In this case license plates and their emblems are carved out of the more general subject of vehicle licensing. A mere reference to a code section in the title does not state a subject, Id. at 808-809. Whether the title is restrictive or general, if a provision is outside the subject expressed in the title, it is void, Id. at 809-811. §58 which amended RCW 46.61.688, is outside the subject expressed in the title to Laws 1990 chapter 250. A requirement to wear seat belts and the enforcement of such requirement is not within the subject of vehicle license plates and license plate emblems.

RCW 46.61.688 is unconstitutional on other grounds as well. Mr. Knight was a passenger in the automobile when he was cited for not wearing a seat belt. Please see Declaration by Roger W. Knight. 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. In the event of a collision, which did not happen in this instance, any injuries he 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.

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.

Lawrence v. Texas, (2003) 123 S. Ct. 2472 found unconstitutional on Fourteenth Amendment substantive due process grounds a state statute that prohibited certain types of physical contact between consenting adults of the same gender within the privacy of their home. Some of those who have engaged in such sexual activity suffer the terrible consequences of receiving the human immunodeficiency virus (HIV). Nevertheless, the United States Supreme Court rejected by not considering in its majority opinion any argument that Texas may have or could have presented that it had a public safety interest in protecting a citizen from the risks of such sexual activity that would justify interfering with the citizen’s decision as to whether to engage in such activity and accept the risk.

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 Wash. App. 638, 641 and n. 1, 24 P. 3d. 485, citing State v. Rupe, (1984) 101 Wash. 2d. 664, 706-707, 663 P. 2d. 571. A citizen who elects not to own a firearm accepts whatever risks there may be for being an unarmed citizen. A citizen who elects to own a firearm accepts the risks that come with such firearm ownership. In our free society, we allow each adult citizen to make his or her own evaluation of the risks of each course of action, and then allow such citizen to decide which course of action to take. We hold such citizens responsible for the decisions they make, including pulling the trigger of a firearm, but we do not interfere with those decisions that place only themselves at risk.

To better illustrate the distinction here, because some people act like they don’t understand that there is a distinction. 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, the seatbelt law does not serve a valid public interest.

We regularly allow people to climb Mt. Rainier, hike trails in remote locations, drive hydroplane boats at high speeds between a large crowd of people on one side on the lakeshore, and a line of stationary boats tied to a log boom on the other side, even though such activities are inherently dangerous. Those who watch the races from a boat tied to the log boom accept the risk that several thousand pounds of engine steel, fuel tank and its contents, fiberglass, wood, and human body will slam into them at 100 miles per hour. We entertain them with high speed fighter jets flying only inches apart. We allow citizens to live where forest fires may burn their homes and grizzly bears may eat their children. We even insist that citizens living in remote locations accept the risk of grizzly bears and wolves, offering to pay for any livestock killed by such wild animals. But the going rate for a child killed by a wolf has not been determined at this time.

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.

For these reasons, this Court should find RCW 46.61.688 unconstitutional and dismiss the Notice of Infraction.

Respectfully submitted, August 5, 2003,

____________________________________

Roger W. Knight, pro se

defendant

If the back button does not take you there, click Home to go to the Index page of this Antipeonage Act Website, click Enemies for the main Enemies page, click Letters for the Letters page, click Allies for the Allies page, or click I3697882 to get to the main page for this case. Or you can use the Antipeonage Act Site Map.