                  TO BE PUBLISHED IN THE OFFICIAL REPORTS

                      OFFICE OF THE ATTORNEY GENERAL
                                State of California

                                DANIEL E. LUNGREN
                                  Attorney General



                                            :
                 OPINION                    :                 No. 98-1003
                                            :
                     of                     :              December 29, 1998
                                            :
          DANIEL E. LUNGREN                 :
            Attorney General                :
                                            :
        ANTHONY M. SUMMERS                  :
         Deputy Attorney General            :
                                            :




         THE HONORABLE ABEL MALDONADO, MEMBER OF THE
CALIFORNIA STATE ASSEMBLY, has requested an opinion on the following question:

            Is a person whose employment requires that he operate a motorcycle and
whose medical condition makes the wearing of a safety helmet a physical and functional
hazard exempt from wearing a safety helmet while operating a motorcycle for work-related
purposes?


                                     CONCLUSION

             A person whose employment requires that he operate a motorcycle and whose
medical condition makes the wearing of a safety helmet a physical and functional hazard is
not exempt from wearing a safety helmet while operating a motorcycle for work-related
purposes.


                                            1                                     98-1003
                                              ANALYSIS

             In 1984, the Legislature adopted a mandatory motorcycle helmet law. (Stats.
1984, ch. 987, § 1.) Vehicle Code section 278031 provides in part:

             “(a) A driver and any passenger shall wear a safety helmet meeting
      requirements established pursuant to Section 27802 when riding on a
      motorcycle, motor-driven cycle, or motorized bicycle.

             “(b) It is unlawful to operate a motorcycle, motor-driven cycle, or
      motorized bicycle if the driver or any passenger is not wearing a safety helmet
      as required by subdivision (a).

             “(c) It is unlawful to ride as a passenger on a motorcycle, motor-driven
      cycles, or motorized bicycle if the driver or any passenger is not wearing a
      safety helmet as required by subdivision (a).

            “(d) This section applies to persons who are riding on motorcycles,
      motor-driven cycles, or motorized bicycles operated on the highways.

              “(e) For the purposes of this section, ‘wear a safety helmet’ or ‘wearing
      a safety helmet’ means having a safety helmet meeting the requirements of
      Section 27802 on the person’s head that is fastened with the helmet straps and
      that is of a size that fits the wearing person’s head securely without excessive
      lateral or vertical movement.”

We are asked whether an exemption from this law is available for a person operating a
motorcycle for work-related purposes, where the person is employed in the motorcycle
industry and is required as part of his employment duties to operate a motorcycle on the
highway, but he suffers from a medical condition that makes the wearing of a safety helmet
a physical and functional hazard. We conclude that no exemption exists for the person under
these circumstances.

             The constitutionality of the mandatory motorcycle helmet law was upheld in
Buhl v. Hannigan (1993) 16 Cal.App.4th 1612. In responding to a claim that the law
impermissibly discriminated against disabled persons, the court stated:

                “Appellants contend section 27803 violates the Americans with


      1
          References to the Vehicle Code hereafter are by section number only.

                                                    2                                 98-1003
Disabilities Act (42 U.S.C. §§ 12132-12213, hereafter ADA) and the Unruh
Civil Rights Act, Civil Code section 51 (Unruh Act). They argue Bowman
cannot ride his motorcycle while wearing a helmet because his hearing
aid–which he needs to hear the sounds of traffic–produces feedback.
Appellants claim the law is invalid because of the undue burden it places on
Bowman. They are wrong, and the point merits little discussion.

        “In the first place, we do not read either the ADA or the Unruh Act to
address the issue of the right of a disabled person to operate a motor vehicle
or motorcycle. The ADA provides ‘no qualified individual with a disability
shall, by reason of such disability, be excluded from participation in or be
denied the benefits of the services, programs, or activities of a public entity,
or be subjected to discrimination by any such entity.’ (42 U.S.C. § 12132.)
It mandates the handicapped have access to public transportation, buildings,
facilities and communications, but it contains no reference to operation of
motor vehicles or to the federal safety standards regarding helmets. As for the
Unruh Act, it gives physically handicapped persons the right to full and equal
accommodations and services in business establishments. (Civ. Code, § 51.)
Appellants do not attempt to explain how it applies here, and in light of its
history and express language, it clearly does not.

        “Moreover, even assuming Bowman must give up riding his motorcycle
while those with unimpaired hearing continue to ride, that would not constitute
grounds for declaring the helmet law unconstitutional. As the court in Anacker
v. Sillas, supra, 65 Cal.App.3d 416, 424, aptly observed in regard to the
Financial Responsibility Law (§ 16000 et seq): ‘“[U]nfair” is not
“unconstitutional.” While one might propose other, perhaps better ways [to
achieve the purpose of the legislation] this is not to say that the method
adopted by the Legislature is irrational. Weighing of the benefits and burdens
of alternative plans is a peculiarly legislative task.’ (Fn. omitted.)

        “It is irrelevant that a law has a substantially different impact on some
persons than on others ‘[s]o long as the legislatively mandated system meets
minimum procedural due process standards.’ [Citation.] The Legislature
could have narrowed the category of persons required to wear helmets while
operating a motorcycle or riding as a passenger. It could have created
exemptions for the disabled–and it still can. But ‘we cannot look behind the
enacted framework to replace the Legislature’s social judgment with our own.
To do so would be an egregious violation of the separation of powers.’ ” (Id.,
at pp. 1623-1624, fn. omitted.)


                                       3                                        98-1003
               The fact that someone may be required to use a motorcycle in his employment,
not merely to go to and from a place of employment, would not cause us to reach a different
conclusion from that expressed in Buhl. We note that courts have examined the validity of
laws regulating the use of vehicles on the public highways under a “rational basis” test,
declaring that there is no “fundamental right” to drive a motor vehicle. (See, e.g., Hernandez
v. Department of Motor Vehicles (1981) 30 Cal.3d 70 [suspension of license for refusal to
submit to chemical test following arrest for drunk driving]; Buhl v. Hannigan, supra, 16
Cal.App.4th at 1621, fn. 5.) The courts have upheld legislative enactments having a greater
impact upon those required to use vehicles in their employment than upon the general public.
(See, e.g., Escobedo v. State Department of Motor Vehicles (1950) 35 Cal.2d 870 [financial
responsibility laws upheld; plaintiff was a gardener, required to use his automobile in his
work to earn a livelihood for himself, his dependent wife, and 9 children]; Alderette v.
Department of Motor Vehicles (1982) 135 Cal.App.3d 174 [equal protection not denied by
statute requiring revocation of farm labor driver certificate upon conviction of driving under
the influence, despite fact that certificate was a requisite of employment]; Murphy v.
Department of Motor Vehicles (1978) 86 Cal.App.3d 119 [mandatory suspension provision
of implied consent law not violative of equal protection despite the fact that some are
deprived of employment while others are deprived only of pleasure driving]; Pepin v.
Department of Motor Vehicles (1969) 275 Cal.App.2d 9 [no violation of equal protection
where Legislature does not provide exception from mandatory suspension law for
“employment-livelihood” cases].)

               Significantly, Buhl v. Hannigan, supra, 16 Cal.App.4th 1612, upheld the
motorcycle helmet law against a claim that it infringed upon a defendant’s freedom of
religion, a “fundamental constitutional right.” The court’s response to the assertion that the
defendant could not wear a turban, required by his religion, while wearing a helmet was as
follows:

              “As for freedom of religion, appellants concede Khalsa, a Sikh, is not
       being forced to cease practicing his religion. However, they argue, the law
       ‘penalizes’ Khalsa by denying him ‘one of the most practical, economical and
       efficient methods of transportation available.’ But an otherwise valid and
       neutral law is not rendered unconstitutional just because it incidentally impacts
       a person’s religious practices. (See Employment Div., Ore. Dept. of Human
       Res. v. Smith (1990) 494 U.S. 872, 885 [108 L.Ed.2d 876, 889-890, 110 S.Ct.
       1595], considering a law prohibiting the use of peyote: ‘The government’s
       ability to enforce generally applicable prohibitions of socially harmful
       conduct, like its ability to carry out other aspects of public policy, “cannot
       depend on measuring the effects of a governmental action on a religious
       objector's spiritual development.” ’) Here, of course, the law does not prohibit
       Khalsa from practicing his religion, i.e., wearing a Rishi knot and turban in

                                              4                                        98-1003
       public. Rather, it prohibits him from riding a motorcycle on public highways
       without a helmet.” (Buhl v. Hannigan, supra, 16 Cal.App.4th at 1624-1625,
       fn. omitted.)

Hence, even if a “fundamental constitutional right” were asserted here, Buhl upheld the
mandatory helmet law against such an argument.

               Finally, Buhl recognized that the mandatory motorcycle helmet requirement
serves a legitimate public interest, since a motorcyclist who injures himself imposes various
costs on society. (Buhl v. Hannigan, supra, 16 Cal.App.4th at 1628.) A comprehensive
analysis of this rationale was provided by the court in State v. Beeman (1975) 25 Ariz.App.
83, 84-85 [541 P.2d 409, 410-411] as follows:

              “The defendant’s position . . . is . . . that the state’s police power does
       not extend to overcoming the right of the individual to incur risks that involve
       only himself. In dealing with this argument the District Court observed:

              “ ‘In view of the evidence warranting a finding that motorcyclists are
       especially prone to serious head injuries, . . the public has an interest in
       minimizing the resources directly involved. From the moment of the injury,
       society picks the person up off the highway; delivers him to a municipal
       hospital and municipal doctors; provides him with unemployment
       compensation if, after recovery, he cannot replace his lost job, and, if the
       injury causes permanent disability, may assume the responsibility for his and
       his family's continued subsistence. We do not understand a state of mind that
       permits plaintiff to think that only he himself is concerned.’

              “We agree with this observation. Any accident on the public highway
       puts into motion the wheels of a number of different state and local agencies
       at a substantial cost to the taxpayers. Furthermore, the helmet prevents a
       motorcyclist from being injured or his attention diverted, by stones or debris
       thrown up from the roadside, thereby causing the cyclist to lose control and
       threaten the safety of both motorists and pedestrians in close proximity. In
       light of these facts we feel that there is valid state interest in requiring all
       motorcyclists to wear helmets and, therefore, [the Arizona mandatory helmet
       requirement] is a valid constitutional extension of the state’s police power.”

              Accordingly, we conclude that the mandatory motorcycle helmet law is a valid
exercise of the police power and that a person whose employment requires the use of a
motorcycle is not, by reason of that fact, exempt from its requirements even though he has
a physical disability which precludes the wearing of a helmet.

                                               5                                        98-1003
*****




  6     98-1003
