Introduction

This article explains the technique involved in successfully enforcing and adjudicating muffler laws containing the statutory elements “excessive or unusual noise” and/or “factory-installed” “original equipment.”  I debunk the “law’s too subjective” argument and provide a commonsense, workable approach to motorcycle noise enforcement that is practically cost-less to law enforcement yet easily implemented and enforceable by every beat-patrol officer.

For an in-depth discussion of the Who, What, Where, When, Why and How of illegal motorcycle noise in the United States, please see my article: The Truth about Loud Motorcycles the Police Won’t or Can’t Tell You: https://rickeyholtsclaw.wordpress.com/2016/03/10/the-truth-about-loud-motorcycles-the-police-wont-or-cant-tell-you/

Thank you,

Rick Holtsclaw, Houston PD/Retired

 

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First Things First

A Suggestion to Law Enforcement

If your municipal or State administration has not been castrated by Political Correctness; If your municipal or State leadership is pro-law enforcement and if they are supportive of proactive policing, if they are truly concerned about the integrity of the rule of law and their responsibility to provide protection for the citizenry, the following motorcycle noise enforcement protocol/technique may be the key to successfully terminating the plague of illegal motorcycle noise in your area of responsibility.

Motorcycle noise enforcement will be the most divisive and controversial enforcement initiative any police department or officer will undertake; this, as a result of forty-years of law enforcement nonfeasance/non-enforcement of the motor vehicle noise laws.  Though illegal motor vehicle noise does not receive the statutory significance it should considering its detrimental physiological/psychological effects, this intrusive “national plague” has become the number-one destroyer of good, daily, quality of life standards for many millions of American citizens, especially for those citizens living and working in congested urban areas throughout the United States.  Unfortunately, those tasked with the responsibility of providing “protection” for the vehicular noise beleaguered citizen have failed and failed miserably for a variety of reasons as discussed in my article, The Truth about Loud Motorcycles the Police Won’t or Can’t Tell You.

When dealing with the Loud Biker Cult[ure] in an enforcement scenario…

1. Record every traffic stop and keep a personal copy of the audio file if your department’s regulations will permit retaining such files. Be fully prepared for Internal Affairs complaints based on false accusations from the Loud Biker Cult[ure] who will be schooled by the Motorcycle Rights Organizations relevant to tactics that undermine your enforcement protocol.
2. Chances are, you will be harassed on social media; therefore, do not fall for the trap of responding or discussing your enforcement initiative on any online forum.
3. Keep all conversations with the Biker/traffic violator to a minimum – no comments, no suggestions, no polite gestures or recommendations…He/She is NOT your buddy or confidant. Never, in 31-years of policing in the 4th-largest police agency in the United States – having policed some of societies most violent and perverse neighborhoods – never did I interact with a more deceitful, lying, obfuscating, group of individuals as the narcissistic, entitled, Loud Biker Cult[ure].
4. Again…Never discuss your noisy vehicle traffic enforcement protocol on social media!  Keep your opinions regarding vehicular noise to yourself – don’t discuss it among fellow officers or supervisors unless asked a direct question. Unfortunately, some of your most vocal detractors will be your fellow officers and supervisors who ride and drive illegally LOUD.
   
5. Warning: If you are successful in adjudicating your motorcycle noise citations, more than likely, the Motorcycle Rights Organizations will make every effort to derail your enforcement initiative via allegations of “harassment” and “profiling;” therefore, always intersperse your vehicular noise enforcement protocol and related arrest activity with noisy automobile and truck citations in conjunction with citations written, arrests made, involving the Loud Biker Cult[ure].
6. God Bless You, may He keep you safe and secure and THANK YOU for standing strong and interceding on behalf of societies most innocent.

Two examples of LOUD Biker Cult[ure] attitude, entitlement, arrogance, illegality, bully behavior due to four-decades of law enforcement nonfeasance/non-enforcement…these videos (1&2) were forward to me on 18 June 2017 by the video’s publisher and are most appropriate for our discussion:

1. https://www.youtube.com/watch?v=1GCNCtz4j_U&feature=youtu.be
2. https://www.youtube.com/watch?v=Gd2iJR7QzR4
3. Loud Biker Thuggery on Parade: https://www.youtube.com/watch?v=Vn05lGA6Gng

A sampling of Loud Biker Attitude relevant to enforcement:

Loud Biker Comment: Phil McAfee “Hey Rick, Too bad you didn’t take one in the face while you were on duty. Its not to late for us to hope.”

Loud Biker Comment: Mohammed Jihad “Fuck your children fuck you elderly and fuck your family go fuck your mother’s grave you fucking scumbag.”

Loud Biker Comment: John, 12 July 2017: Die in a fire, Rick, you unAmerican, fascist piece of shit. I mean that with nothing but love, of course.

Loud Biker Comment: Brian Mackenzie 16 July 2017: I put the loudest pipes I could get on my bike because fuck you and my neighbors.

The following URL will provide law enforcement with an example of the “personality type” to expect when dealing with the Loud Biker Cult[ure] in an enforcement capacity, don’t be swayed or deceived by their initial receptive attitude…see: https://rickeyholtsclaw.wordpress.com/2015/09/04/loud-biker-mentality-1949-v-21st-century/

Rick Holtsclaw, HPD/Retired

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Enforcement Protocol – Keeping it Simple

Sound Meter Legislation – A Problem

As most police officers are already aware, sound meters cannot be introduced into the adjudicatory environment as evidence unless motor vehicle noise legislation specifically articulates the statutory elements detailing their implementation. During my most recent review of the state muffler laws, only three states had encumbered themselves with useless, redundant, sound meter legislation while one-state, Vermont, has no acoustical limitations for public road-use motor vehicles.  Forty-six state statutes contained the statutory elements of either “prevent excessive or unusual noise” and/or “factory-installed muffler” or “original equipment.”  Let’s discuss the options available to the enforcement officer seeking to protect the citizenry from the illegal, intrusive, NOISE of the Loud Biker Cult[ure] when said officer must work within the parameters of these statutory elements.

Examples:

***Texas Transportation Code: Sec. 547.604. MUFFLER REQUIRED.

(a) A motor vehicle shall be equipped with a muffler in good working condition that continually operates to prevent excessive or unusual noise.

(b) A person may not use a muffler cutout, bypass, or similar device on a motor vehicle.

***Arkansas: 27-37-601. Noise or smoke producing devices prohibited.

(a) Every motor vehicle shall, at all times, be equipped with a factory-installed muffler or one duplicating factory specifications, in good working order and in constant operation, to prevent excessive or unusual noise and annoying smoke.

(b) No person shall use on a motor vehicle upon the public roads, highways, streets, or alleys of this state, nor shall any person sell for use on a motor vehicle upon the public roads, highways, streets, or alleys of this state, a muffler, other than as defined in subsection (a) of this section, cutout, bypass, similar device, or any type device which produces excessive or unusual noise or smoke.

***Illinois: (625 ILCS 5/12-602) (from Ch. 95 1/2, par. 12-602)

Sec. 12-602. Mufflers, prevention of noise.

Every motor vehicle driven or operated upon the highways of this State shall at all times be equipped with an adequate muffler or exhaust system in constant operation and properly maintained to prevent any excessive or unusual noise. No such muffler or exhaust system shall be equipped with a cutout, bypass or similar device. No person shall modify the exhaust system of a motor vehicle in a manner which will amplify or increase the noise of such vehicle above that emitted by the muffler originally installed on the vehicle, and such original muffler shall comply with all the requirements of this Section.

For your State’s muffler law, please see: https://rickeyholtsclaw.wordpress.com/2016/09/12/state-muffler-laws/

Following is an example of problematic and redundant sound meter legislation…

***MICHIGAN (useless)

Act 300 of 1949

257.707c Noise limitations; prohibitions.

Sec. 707c.

(1) After April 1, 1978, a motor vehicle shall not be operated or driven on a highway or street if the motor vehicle produces total noise exceeding 1 of the following limits at a distance of 50 feet except as provided in subdivisions (b)(iii) and (c)(iii):

(a) A motor vehicle with a gross weight or gross vehicle weight rating of 8,500 pounds or more, combination vehicle with gross weight or gross vehicle weight ratings of 8,500 pounds or more.

(i) Ninety DBA if the maximum lawful speed on the highway or street is greater than 35 miles per hour.

(ii) Eighty-six DBA if the maximum lawful speed on the highway or street is not more than 35 miles per hour.

(iii) Eighty-eight DBA under stationary run-up test.

(b) A motorcycle or a moped:

(i) Eighty-six DBA if the maximum lawful speed on the highway or street is greater than 35 miles per hour.

(ii) Eighty-two DBA if the maximum lawful speed on the highway or street is not more than 35 miles per hour.

(iii) Ninety-five DBA under stationary run-up test at 75 inches.

(c) A motor vehicle or a combination of vehicles towed by a motor vehicle not covered in subdivision (a) or (b):

(i) Eighty-two DBA if the maximum lawful speed on the highway or street is greater than 35 miles per hour.

(ii) Seventy-six DBA if the maximum lawful speed on the highway or street is not more than 35 miles per hour.

(iii) Ninety-five DBA under stationary run-up test 20 inches from the end of the tailpipe.

(2) A dealer shall not sell or offer for sale for use upon a street or highway in this state a new motor vehicle manufactured after April 1, 1978, which produces a maximum noise exceeding the following limits:

(a) A motor vehicle with a gross vehicle weight rating of 8,500 pounds or more—83 DBA.

(b) A motorcycle or a moped—83 DBA.

(c) A motor vehicle not covered in subdivision (a) or (b)—80 DBA.

(3) A person shall not operate a vehicle on a highway or street if the vehicle has a defect in the exhaust system which affects sound reduction, is not equipped with a muffler or other noise dissipative device, or is equipped with a cutout, bypass, amplifier, or a similar device.

(4) A person, either acting for himself or herself or as the agent or employee of another, shall not sell, install, or replace a muffler or exhaust part that causes the motor vehicle to which the muffler or exhaust part is attached to exceed the noise limits established by this act or a rule promulgated under this act.

(5) A person shall not modify, repair, replace, or remove a part of an exhaust system causing the motor vehicle to which the system is attached to produce noise in excess of the levels established by this act, or operate a motor vehicle so altered on a street or highway.

(6) A dealer shall not sell a used or secondhand motor vehicle for use upon a street or highway which is not in compliance with this act.

Question: Why are sound meters problematic and “redundant?”  

Though only a few States have encumbered themselves with useless sound meter legislation for motor vehicle noise enforcement, far too many municipal motor vehicle noise ordinances are convoluted and confusing due to unenforceable sound meter requirements; as a result, Loud Biker Thuggery flourishes and the people suffer.  Though these municipalities have the enforceable state muffler statute available for enforcement purposes, it is “money” for the coffer that under-girds the enactment of redundant city ordinances.  Apparently, fines generated from state statutes, a greater portion of that “revenue” is forwarded to the state; whereas, if an ordinance is used to enforce the very same violation i.e. motor vehicle noise, the monies generated by fines and court costs are forwarded to the municipal coffer.

With that said…

It is unwise to introduce any instrument into the adjudicatory process unless said instrument is absolutely necessary to prove the elements of the statute beyond a reasonable doubt.  Lasers, radars, sound meters, require expert testimony, require regular certification of the instrument, certification of the operator, proper testing protocol before and subsequent to usage.  Sound meters (Type 1 or Type 2) are expensive when purchased in sufficient quantities to properly address the pervasive motor vehicle noise problems on our pubic roadways.  Sound meters require regular certification and documentation to verify that certification and re-certification.  Sound meters present concerns relevant to ambient noise during testing, controlled testing sites, atmospheric interference, expert testimony criteria with the ability to articulate/explain logarithmic differentials.  Basically, sound meter legislation provides very fertile ground upon which a good defense attorney can cultivate “reasonable doubt” in the mind of a jury, judge or magistrate ultimately culminating in adjudicatory failure.

Sound meter legislation is not only problematic for enforcement and adjudication, but they are unnecessarily redundant for motorcycle noise enforcement because the factory-installed muffler, as approved by the U.S. EPA via the Code of Federal Regulations, has already been thoroughly tested in an environmentally-scientifically controlled testing environment as per the Society of Automotive Engineers (SAE) J331a Full-throttle drive-by testing procedure.

The SAE J2825 Stationary Motorcycle Test…again, problematic…

Though some “experts” seeking a remedy to pervasive, illegal, motorcycle noise on our public roadways are proponents of the SAE J2825 Stationary Motorcycle Testing Procedure, again, I personally believe such sound meter legislation is unnecessary, fraught with enforcement costs, implementation and adjudicatory problems and does not adequately duplicate the “real world” protective intent of the SAE J331a Full-throttle drive-by test.  For more information on the SAE J2825 Stationary Motorcycle Testing Procedure please see:

Noisy Motorcycles – An Environmental Quality of Life Issue: https://inceusa.org/publications/technical-reports/#noisy-motorcycles (Tab on heading “Noisy Motorcycles – An Environmental Quality of Life Issue” once you’re on the introductory page)

SAE J2825 Sound Test – video: https://www.youtube.com/watch?v=2KdYUhH3JSo

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No Sound Meter for Enforcement? – Are there any Options?

As mentioned earlier, unless the motor vehicle muffler statute is constructed with statutory elements defining the parameters for sound meter implementation, sound meters cannot be introduced as evidence; therefore, what options are available when a muffler law contains the universal citation “prevent excessive or unusual noise”?

“Void for Vagueness” concerns…

During my enforcement years, the biggest challenge to enforcement relevant to the law was the unfounded, spurious allegations/obfuscation that a motor vehicle muffler statute containing “prevent excessive or unusual noise” was too subjective, to broad and therefore Constitutionally “void for vagueness.”

In response, I presented legal precedent to Houston’s Legal Department, Aaron C. Aguilar v. The State of Texas (2008), where Justice Catherine Stone affirmed the authority of a police officer to “subjectively” determine what is “excessive or unusual noise” emanating from a motor vehicle.

***Question: Okay, so we’ve adequately addressed the “void for vagueness” concerns relevant to “subjectivity” of the universal statute elements, “prevent excessive or unusual noise,” but don’t you need an “objective” standard in which to compare motorcycle noise emissions; after all, officers might have differing subjective “opinions” relevant to exactly what is “excessive or unusual noise” emanating from a motor vehicle?

In order to adequately respond to this question, we must return to our foundation, the basics, the Federal Law.

The Federal Law – The Foundation for Motorcycle Noise Enforcement

You can view an electronic version of the U.S. EPA’s Code of Federal Regulations pertaining to “motorcycles” at this URL: Tab down to Subpart D and Subpart E for “MOTORCYCLES” see: https://www.ecfr.gov/cgi-bin/text-idx?tpl=/ecfrbrowse/Title40/40cfr205_main_02.tpl

Forty-six State Muffler Laws contain statutory-elements that mirror the protective intent of the Federal Motorcycle Noise Regulations and it is the Federal Law that provides law enforcement with an “objective” standard for enforcement protocol.  It is the thoroughly tested and properly labeled factory-installed muffler that is the “objective” standard for enforcement protocol when the applicable motor vehicle code contains the statutory elements, “prevent excessive or unusual noise” and/or “factory-installed muffler” or “original equipment.”

Question: What is “excessive or unusual noise” emanating from a motorcycle’s muffler?

Discussion

In 1983, the U.S. EPA via their Code of Federal Regulations restricted “total” motorcycle noise emissions to 83 dB(A) for street-use production motorcycles.  Why?  Motorcycle noise emissions were restricted out of a concern for the health and welfare, the quality of life of the American citizen.  For more information on the physiological/psychological ramifications of motorcycle noise see my article, https://rickeyholtsclaw.wordpress.com/2016/03/10/the-truth-about-loud-motorcycles-the-police-wont-or-cant-tell-you/

Between 1983 and 1986, the U.S. EPA pursued a policy to reduce “total” motorcycle noise emissions from 83 dB(A) to 78 dB(A), but Suzuki Motors expressed concerns regarding the cost effectiveness of producing a motorcycle to conform to the 78 dB(A) limitation; therefore, an 80 dB(A) “total” motorcycle noise emissions limitation or cap was enacted for 1986-year model street-use production motorcycles going forward to today.

Question: What is the significance of  “total” motorcycle noise emissions of 80 dB(A)? What exactly do you mean by “total?” 

A sample make and model motorcycle seeking street-use certification is tested by the manufacturer in accordance with the Code of Federal Regulations testing procedure i.e. the SAE J331a Full-throttle drive-by test which is conducted in an environmentally controlled testing environment.  The test motorcycle is accelerated to maximum brake horsepower and every moving part on the motorcycle, in their totality (not just the engine-muffler noise emissions), is examined for “total” noise emissions at 49.2 feet on each side of the test motorcycle.  In order to successfully complete the SAE J331a testing procedure and receive certification for use on our public roadways, the “total” motorcycle noise emissions cannot exceed 80 dB(A) – respectfully quiet.

It’s important to note that the SAE J331a Full-throttle drive-by test provides a more “real world” analysis of what the citizen is exposed to as that motorcycle is operated on our public roadways…again, this is done out of a concern for the health and welfare of the general public and remember…it is that 80 dB(A) “total” motorcycle noise emissions cap that is the “minimum” level of protection for the general public.

The “Federal” Labels… 

Once the test motorcycle successfully completes the SAE J331a Full-throttle drive-by test, every muffler that is to be affixed to the motorcycles for retail and operated on America’s public roadways is permanently labeled in a “readily visible location” with a rather large U.S. EPA Muffler Label with specific text required…

The motorcycle’s frame is also labeled with a U.S. EPA Label designating the R.P.M. at which that particular motorcycle reached its 80 dB(A) limitation and said frame label also warns that tampering with the noise control system violates Federal law.  The frame label is generally located on the downtube of the frame in front of the engine on “cruiser” style motorcycles and is located on the horizontal frame support below the fuel tank of sportbike style motorcycles with full plastic/fiberglass/carbon fiber fairings.  I’ve noticed that these labels are, for the most part, visible from the right side of the motorcycle during inspection protocol.

Federal Tampering Prohibitions…

In addition to the required muffler and frame labels, the U.S. EPA’s Code of Federal Regulations also stipulates “Tampering” prohibitions that are to be articulated within the motorcycle’s owners manual.  The Code of Federal Regulations stipulates specific verbiage relevant to forbidding the alteration/manipulation/modification or removal of the factory-installed muffler except for maintenance/repair, but…if that factory-installed muffler requires replacement, it must be replaced with a muffler mechanism conforming to the acoustical dampening characteristics of the factory-installed muffler.  Also note, the factory-installed muffler is required to remain on the motorcycle for the LIFE of the motorcycle and it is the responsibility of State and Local Law Enforcement to ensure those production motorcycles maintain their quiet, factory-installed muffler or a muffler conforming to the factory-installed muffler’s acoustical dampening specifications subsequent to retail.

Therefore…in response to the previous question regarding an “objective standard” for motorcycle noise enforcement, it is the U.S. EPA certified, factory-installed, labeled, quiet, muffler system that is the “objective standard” for motorcycle noise emissions standards in the United States where the statutory elements of “prevent excessive or unusual noise,” “original equipment” or “factory-installed muffler” are the burden of proof during adjudication.

Question: How do you equate the “factory-installed muffler” as an “objective standard” for enforcement/adjudication?

As discussed earlier, in 1986 the U.S. EPA established 80 dB(A) “total” motorcycle noise emissions as the “minimum” level of protection for the general public…actually, the U.S. EPA desired 78 dB(A), but compromised on 80 dB(A) in response to concerns relevant to manufacturing costs.

Okay…if 80 dB(A) total motorcycle noise emissions (every moving part analyzed in their totality in conjunction with engine exhaust emissions) is the “minimum level” of protection for the general public and the factory-installed muffler must suppress engine exhaust emission noise levels to such a degree as to not contribute to an excess of the 80 dB(A) limitation – does it not stand to reason that any sound emanating from a motorcycle muffler or exhaust that is LOUDER than that which emanates from the quiet factory-installed muffler is indeed “excessive or unusual noise”?

Comparison/differentiation made between the noise emissions of a quiet, properly labeled, U.S. EPA approved, safe, factory-installed muffler and the NOISE EMISSIONS of a NOT FOR ROAD USE – COMPETITION – CLOSED COURSE MOTORCYCLE ONLY aftermarket exhaust emitting in multiples (logarithmic scale) the noise emissions of the quiet factory-installed muffler…the differentiation/comparison/analysis is VERY simple, VERY obvious, VERY elementary, STARK and unmistakable. This “noise comparison analysis” is not subjective in that the differentiation between the objective standard (quiet factory-installed muffler) and the offending NOT FOR ROAD USE exhaust is unmistakable and irrefutable.

FYI: dB differentials are calculated using a logarithmic scale – not linear, see:

1. Log Calculator: http://www.sengpielaudio.com/calculator-levelchange.htm
2. Helpful Log Comparisons: https://www.chem.purdue.edu/chemsafety/Training/PPETrain/dblevels.htm

It worked for me…

This motor vehicle enforcement technique called “Noise Comparison Analysis (NCA)” is practically cost-less to police departments, requires a minimum of familiarization-training for law enforcement personnel and is easily implemented by the “beat-patrol” officer void the complications associated with sound meter legislation.

Important: The Local Judiciary and Legal Departments must be apprised of the enforcement technique and subsequently approve Noise Comparison Analysis…

It is absolutely critical that prior to the implementation of Noise Comparison Analysis for enforcement protocol, the municipality’s legal department, city prosecutor and the magistrates be fully informed and approve the enforcement technique.

Beware of tampering…

There are those traffic investigations with excessive motorcycle noise as probable cause and the inspecting officer is confronted with a muffler mechanism that is OEM – factory-installed, properly labeled…but extremely noisy. I have found some very meticulous “tampering” violations involving the factory-installed muffler.  Drilling holes in the muffler canister, chiseling out baffles are obvious, but there are those loud biker advocates who meticulously cut open the muffler canister and remove acoustical material then carefully wire-weld the area closed.  Simply because a motorcycle’s muffler is labeled and is obviously factory-installed does not necessarily denote compliance.  Considering that 60% to 80% of the motorcycles operating on our public roadways at any given time are illegally modified or illegally equipped, it has been my experience that an overwhelming number of LOUD motorcycles are the recipients of a NOT FOR ROAD USE – COMPETITION – CLOSED COURSE aftermarket exhaust mechanism.

Noise Free America has published a helpful manual for Law Enforcement engaged in Motorcycle Noise Enforcement, see: A Guide to Modified Exhaust Systems: https://www.motorcyclenoise.org/

 

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For information concerning the Loud Biker Cult[ure] and their NOT FOR ROAD USE aftermarket exhausts or answers to the question why our roadways are flooded with illegally LOUD motor vehicles with an emphasis on illegal motorcycle NOISE, please see: The Truth about Loud Motorcycles the Police Won’t or Can’t Tell You: https://rickeyholtsclaw.wordpress.com/2016/03/10/the-truth-about-loud-motorcycles-the-police-wont-or-cant-tell-you/

(Photos) U.S. EPA “NOT FOR ROAD USE” Muffler Label required for off-road – competition mufflers.  This label is used by some of the higher-end motorcycle exhaust manufacturers in an attempt to negate civil liability for marketing these egregiously LOUD exhaust mechanisms for street-use motorcycles.  Generally located in an inconspicuous position on the muffler canister.  Lower-end manufacturers don’t bother with the label and express no concern for regulatory intervention or liability – they simply don’t care about your quality of life or your health and welfare…it’s all about the “money.”

The following URL provides information relevant to the illegal marketing tactics of the aftermarket exhaust industry; unfortunately, the URL is often times changed or manipulated apparently to prevent it from remaining secured as a linked article; therefore, you may be required to search the article’s title: Shades of Gray, Selling and installing aftermarket exhausts, and the legal liabilities for dealers, https://www.dealernews.com/shades-of-gray-selling-and-installing-aftermarket-exhausts-and-the-legal-liabilities-for-dealers/

Beware of the deceit and obfuscation of the Loud Biker Cult[ure] and the Motorcycle Rights Organizations…

Subsequent to 31-years in Law Enforcement…

IMHO: The ONLY solution to the out of control, illegal, motor vehicle noise problem on our pubic roadways in the United States…The American Quality of Life Act (2017) as presented to certain Congressional Representatives on Capitol Hill, May/2017: https://view.publitas.com/p222-12679/american-quality-of-life-act-2017-congressional-bill-proposal/

Thank you,

Rick Holtsclaw, Houston PD/Retired