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Legally Speaking with Bob Mionske: Listen up!
Hi, Bob,
As a lawyer (corporate securities) and a wanna-be road racer, I always enjoy reading your column. Have you ever covered the legalities of using an iPod or other player, with headphones, on the road? Guys I know get tickets for this in California; I live in Texas. I think somewhere I read it might make a difference if you use one earpiece instead of both. I see more and more guys with 'em in and thought it might make an interesting column.
P.H.
Austin, Texas
Dear Paul,
When I was pursuing my racing career I passed the many, many hours of lonely riding listening to music and talk radio on my earphones. I became so addicted to this form of distraction that I would panic when my batteries ran low. I even wore them on group rides with teammates who took the respite from my constant chatter as a gift and never complained. I was never stopped by police, and the legality of this habit was never called into question.
Many of us have heard about President Bush’s much-publicized mountain biking with his iPod, but whether you can listen to your personal music device while riding depends on where you do it. In some states it is illegal to have any sort of headphone covering your ears while operating a motor vehicle or bicycle. Florida law, for example, states, “No person shall operate a vehicle while wearing a headset, headphone, or other listening device” (Section 316.304). In other states the law permits wearing headphones as long as one ear remains uncovered, and in still others wearing both earpieces may be permitted. Finally, in many states there is no law on the books at all. The absence of a law does not necessarily mean wearing headphones is permitted, though; the best course would be to check with your local department of vehicles.
Even in states that have laws on the books, the legality of headphone use while riding is confusing. For example, while Florida bans the use of headphones, there is an exception for using a cell phone with a headset that “only provides sound through one ear and allows surrounding sounds to be heard with the other ear.” Is this the equivalent of listening to music with one earpiece out (which, parenthetically, produces an awful sound)? In your question you referenced people getting ticketed in California, where the law states, “A person operating a motor vehicle or bicycle may not wear a headset covering, or earplugs in, both ears” (CA Vehicle Code Section 27400). This would suggest that listening to headphones is permitted if you have only one earpiece in, but again the law is not as clear as it could be.
Much of the recent legislation that has been passed has been driven by the prevalence of people talking on their cell phones while driving. We can expect in the near future to see more and more states enacting laws prohibiting or restricting this activity (such as requiring the use of hands-free devices). Whether these laws will affect headphone use by cyclists remains to be seen, but clearly the risks are not the same. Nevertheless, keep an eye out in your own state for a change in the law that may affect you as a cyclist.
Laws banning the use of headphones while driving or biking assume that headphones will block out important background sounds such as horns and sirens and that such use is unsafe. In addition, nearly every bicycle-safety advocate I have encountered believes it is better to forgo the headphones. Of course, someone telling you that it is not safe to ride with headphones on does not mean it is against the law to do so. It is interesting to note that deaf individuals are permitted to drive and that nothing stops you from battering your eardrums into oblivion inside your car by blasting your stereo.
Lastly, if you are using a personal music device and are injured in an accident with a negligent driver, it is certain that the insurance company will attempt to pin some or all the blame on you, making recovery of your damages more difficult.
Good luck,
Bob
(research and drafting assistance provided by Lewis & Clark Law School Law School student Bryan Rousseau)
Bob Mionske is a former competitive cyclist who representedthe U.S. at the 1988 Olympic games (where he finished fourth in the roadrace), the 1992 Olympics, as well as winning the 1990 national championshiproad race.After retiring from racing in 1993, he coached the Saturn Professional Cycling team for one year before heading off to law school. Mionske's practice is now split between personal-injury work, representing professional athletes as an agent and other legal issues facing endurance athletes (traffic violations, contract, criminal charges, intellectual property, etc).If you have a cycling-related legal question, please send it to mionskelaw@hotmail.comBob will answer as many of these questions privately as he can. He willalso select a few questions each week to answer in this column. Generalbicycle-accident advice can be found at www.bicyclelaw.com.Important notice:
The information provided in the "Legally speaking"column is not legal advice. The information provided on this publicweb site is provided solely for the general interest of the visitors tothis web site. The information contained in the column applies to generalprinciples of American jurisprudence and may not reflect current legaldevelopments or statutory changes in the various jurisdictions and thereforeshould not be relied upon or interpreted as legal advice. Understand thatreading the information contained in this column does not mean youhave established an attorney-client relationship with attorney Bob Mionske.Readers of this column should not act upon any information contained inthe web site without first seeking the advice of legal counsel.
