Follow Louisiana’s Lead: The Case for Eliminating State Gag Rules on Motorists’ Failure to Buckle Up

By Lee Mickus, a Partner in the Denver, CO office of Evans Fears & Schuttert LLP.

Click on button above for full publication

Executive Summary

Laws in three-quarters of U.S. states and the District of Columbia prohibit or severely restrict defendants in motor-vehicle accident jury trials from introducing evidence that injured drivers or passengers had not buckled their seatbelt. For more than three decades, these gag rules have unfairly rewarded unbelted plaintiffs by allowing them to avoid the legal consequences of not buckling up.

The Louisiana legislature’s recent repeal of the state’s evidentiary gag rule creates a timely context within which Evans Fears & Schuttert LLP attorney Lee Mickus examines the history of these laws and makes the case for their elimination.

These laws, Mickus explains, were a product of both the different attitudes about seat belt use motorists held in the 1980s and states’ resentment of the federal government’s attempt to dictate seat belt standards as part of an air-bag rulemaking. Vehicle drivers and passengers felt seat belts restricted their freedom of movement and could entrap them if an accident occurred. Those opinions have shifted dramatically in three decades, a change that Mickus concludes inspired Louisiana to repeal its gag rule.

Louisiana courts should take advantage of the law’s repeal, Mickus argues, and allow jurors to consider seat belt nonuse evidence for proof of comparative fault and for setting damages. The author discusses the numerous public-policy reasons that support seat-belt evidence, including the oddity of rejecting as evidence in a civil trial information that would subject the unbelted motorist to criminal sanctions under state law.

The Working Paper concludes with a brief overview of the status of the evidentiary gag rule in other states. A number of states, including most recently Iowa and Missouri, have allowed courts to admit information about seat belt use at trial. A large majority of states—38 plus D.C.—however, cling to outdated gag rules. Mickus concludes by urging state lawmakers to consider Louisiana’s actions and the compelling arguments that support their legislative repeal in future legislative sessions.