Legally Speaking with Bob Mionske: Listen up!
By Robert Mionske, JD
This report filed August 4, 2005
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.
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.
Although obvious, i never really took into account the last part i highlighted in bold.
Bob is right about the Florida law, it does prohibit the use of headphones, except for one headphone for cell phone use and hearing impaired. Bob is wrong about the California law that he cited.
CA law on Wearing of Headsets or Earplugs
27400. A person operating a motor vehicle or bicycle may not wear a headset covering, or earplugs in, both ears. This prohibition does not apply to any of the following:
1. (a) A person operating authorized emergency vehicles, as defined in Section 165.
(b) A person engaged in the operation of either special construction equipment or equipment for use in the maintenance of any highway.
(c) A person engaged in the operation of refuse collection equipment who is wearing a safety headset or safety earplugs.
(d) A person wearing personal hearing protectors in the form of earplugs or molds that are specifically designed to attenuate injurious noise levels. The plugs or molds shall be designed in a manner so as to not inhibit the wearer's ability to hear a siren or horn from an emergency vehicle or a horn from another motor vehicle.
(e) A person using a prosthetic device that aids the hard of hearing
The headsets coverings and earplugs this law talks about are hearing protection devices and not music or cell headphones. The headsets are those Mickey mouse ear protection style coverings.
I have never been able to find a CA law that deals with headphones and bicyclist. All challenges to others saying it is illegal to produce the law only gets a quote of the above section at best.
If anyone actually knows of a CA law dealing with headphones and bicyclist, please post the entire section.