Something Everyone in ABATE Should Consider
There is a lot of misinformation floating around about what is legally required of us when it
comes to the protective glasses, goggles, or transparent face shields we are supposed to wear.
The same is true of protective windshields. Here is what the law says:
An operator of a motorcycle, all-terrain vehicle or motor driven cycle shall wear
at all times protective glasses, goggles or a transparent face shield of a type
approved by the director unless the motorcycle, all-terrain vehicle or motor driven
cycle is equipped with a protective windshield.
If you are able to tell me exactly what that does or does not cover, then you are probably a better
lawyer than I am. The problem is that the laws do not define at what point someone becomes an
“operator,” what the word “wear” actually means for the purposes of the statute, and what makes
“protective glasses,” “goggles,” or a “protective windshield” legally permissible. That is a big
problem.
Some officers believe an operator is anyone who is about to ride a motorcycle. They will cite
you if you are pressing the start button with your visor up. Some believe you are only an
operator if you are moving. They will cite you if you pull away from a stop while putting your
visor down. Others think you are only breaking the law if you are riding on a highway with the
visor up. What if you are maneuvering your bike into a parking space with the motor off and the
visor up while your feet are firmly on the ground? What if you are walking your bike while you
stand next to it? Right now, it is basically up to the officer to decide what the law is, and judges
usually rubber stamp their decisions.
Similarly, officers give themselves broad power to decide what makes protective glasses or
goggles sufficient. Some officers believe that the state has not specifically approved anything, so
they will give a ticket to anyone not wearing a helmet with an approved transparent face shield.
It basically turns the statute into a helmet law. Some officers believe the glasses or goggles need
to be specifically designed for motorcycling. They will ticket you unless you can prove to them
that Harley or BMW or someone else made them for that specific purpose. Other officers
believe sunglasses or aviator goggles are never sufficient and will ticket you accordingly. What
if you have airtight Oakley wrap-around sunglasses? What if you made your own goggles that
meet or exceed anything professionally manufactured and mass-produced? Again, this too is
basically up to the officer to decide, and judges usually rubber stamp their decisions.
Although it may seem like I am splitting hairs, it is an even bigger problem that the word “wear”
is not defined. Are you still “wearing” your glasses if you lift them up for a second to get
something out of your eye? Are you still “wearing” your goggles if you pull them forward for a
second to rub the lenses when they have fogged up? Are you still “wearing” the visor if you lift
it up for a moment because it is 120 degrees and you are overheating? Can you crack the face
shield even one millimeter? Many officers believe you must be wearing it in a way that they
deem sufficient to protect your eyes. In other words, it is completely up to their discretion.
Others think it should be your decision and that you simply must have glasses, goggles, or a face
shield available and on your person in the event you feel they are necessary for your safety, but
those officers are definitely not in the majority.
Finally, officers and courts are not in agreement about the word “protective windshield.” Just
like everything else in that statute, there is no law defining the term. Some officers will give you
the benefit of the doubt because the law does not say what is sufficient. For those officers, even
though Arizona’s Motorcycle Operator Manual says windscreens on sport-style motorcycles are
not considered protective windshields, they will not cite you. It is rare you will encounter those
officers. Instead, I have mostly seen officers claim your windshield must be no more than 2
inches below your eye level, that it must be exactly at eye level, or that is must be at least 2
inches above eye level. In reality, they just make it up as they go. They also rarely measure the
height, instead just guessing and claiming they are very good at estimating. What if your
windshield has a unique aerodynamic shape? What if there is a hole in it? Your guess is as good
as mine.
I just did a civil traffic hearing where my client was accused of riding with his face shield up on
a hot day on a surface street in Mesa. The judge said he thought that the word "operator" seemed
to imply someone on a vehicle that was underway. Whether maneuvering into a parking spot
with the visor up and both feet on the ground would constitute a violation to him is still unclear.
He then explained he thought that "wear" seemed to imply not just having it as part of the helmet
you are wearing, but using it in a way that makes it preventing things from getting your eyes.
Finally, he explained he thought that "protective windshield" seemed to imply a windshield that
would prevent you from getting things in your eyes. I know a lot of judges that would have
reached different conclusions. Some would be more lenient, but most would be even stricter.
Like the officers, though, they really just make it up as they go.
I think that ABATE should consider taking some sort of action to clarify the statute or change
the law altogether. We are essentially giving police and the courts the ability to create law. It is
fundamentally unfair to hold people responsible for supposedly violating a statute that can be
interpreted in so many reasonable ways. It is even worse because vague laws give officers the
ability to selectively enforce them. Do you think police are ticketing riders in brand new full
body suits on brand new Gold Wings? Unclear laws give officers a legal basis to harass the
people they want to harass in the first place.
Unless we fix this, the only way to avoid a ticket is to wear an approved helmet with the
approved visor down from the moment you start your motorcycle to the moment you walk away.
On average, these tickets cost about $150.00, though they will not result in any points.
Regardless, I think this is just the sort of this ABATE needs to address.