State v. Barker

531 S.E.2d 228, 138 N.C. App. 304, 2000 N.C. App. LEXIS 604

• Court: Court of Appeals of North Carolina
• Decided: June 6, 2000
• Docket: No. COA99-798
• Status: Published

Opinions

HORTON, Judge.

The State contends that the trial court erred in granting respondents’ motion to dismiss because respondents did not have standing to challenge the statute on grounds that it is unconstitutionally vague. We agree, and reverse the ruling of the trial court.

“It is well established that vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand.” United States v. Mazurie, 419 U.S. 544, 550, 42 L. Ed. 2d 706, 713 (1975). “Objections to vagueness under the Due Process Clause rest on the lack of notice, and hence may be overcome in any specific case where reasonable persons would know that their conduct is at risk.” Maynard v. Cartwright, 486 U.S. 356, 361, 100 L. Ed. 2d 372, 380 (1988). A statute is not vague as applied where it gives “clear notice that a reasonably ascertainable standard of conduct is mandated” and it “intelligibly forbids a definite course of conduct[.]” United States v. Powell, 423 U.S. 87, 92-93, 46 L. Ed. 2d 228, 234 (1975). See also Mazurie, 419 U.S. at 553, 42 L. Ed. 2d at 714 (statute is not impermissibly vague where it is sufficiently precise for a man of average intelligence to “ ‘reasonably understand that his contemplated conduct is proscribed.’ ” Id. (citation omitted)).

N.C. Gen. Stat. § 20-140.4(a) provides, in pertinent part, that

(a) No person shall operate a motorcycle or moped upon a highway or public vehicular area:

* * * *

(2) Unless the operator and all passengers thereon wear safety helmets of a type approved by the Commissioner of Motor Vehicles.

Id. A violation of this section is an infraction. N.C. Gen. Stat. § 20-140.4(c). The right of the State to impose, in the exercise of its police powers, such a requirement on motorcycle riders was settled by our Supreme Court more than three decades ago. State v. Anderson, 275 N.C. 168, 166 S.E.2d 49 (1969) (interpreting N.C. Gen. Stat. § 20440.2(b), predecessor to § 20440.4(a)(2)). Here, respondents do not deny that they were aware of the requirement that motorcyclists wear safety helmets. Indeed, a number of the respondents were in possession of safety helmets when cited with violation of this statute. Even assuming for the purpose of argument that the statutory requirement that a safety helmet be “of a type approved by the Commissioner” is vague, a person of reasonable intelligence would understand that a failure to wear some type of safety helmet would be prohibited under North Carolina law.

“A litigant who challenges a statute as unconstitutional must have standing. To have standing, he must be adversely affected by the statute.” In Re Jackson, 60 N.C. App. 581, 584, 299 S.E.2d 677, 679 (1983). “One to whose conduct a statute clearly applies may not successfully challenge it for vagueness.” Parker v. Levy, 417 U.S. 733, 756, 41 L. Ed. 2d 439, 458 (1974). A statute which by its terms, or as authoritatively construed, applies without question to certain activities, but whose application to other behavior is uncertain, is not vague as applied to “hard-core” violators of the statute. See Smith v. Goguen, 415 U.S. 566, 577-78, 39 L. Ed. 2d 605, 614 (1974). In this case, a motorist would be adversely affected by the statute if he wore some type of safety helmet while operating a motorcycle and was nevertheless cited for violating the provisions of N.C. Gen. Stat. § 20440.4(a)(2) for wearing a helmet not of a type approved by DMV. Because respondents were not wearing safety helmets of any kind when they were cited, they do not fall in the class of persons adversely affected by the statute and therefore lack standing to challenge the statute on constitutional grounds.

Other jurisdictions have confronted this issue and ruled in similar fashion. See, for example, City of Kennewick v. Henricks, 84 Wash. App. 323, 326, 927 P.2d 1143, 1145 (1996) (where statute required motorcycle riders to wear “protective helmets” and petitioners were wearing no helmets at the time of the citations, petitioners violated the “hard-core” provisions of the statute and lacked standing to claim vagueness as to the rules relating to acceptable types of helmets), disc. review denied, 131 Wash. 2d 1022, 937 P.2d 1102 (Wash. 1997).

The ruling of the trial court granting defendants’ motion to dismiss is hereby

Reversed.

Judge SMITH concurs. Judge WYNN concurs with separate opinion.