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Vehicle Code 23109(c) – Exhibition Of Speed

The statute:

(c) A person shall not engage in a motor vehicle exhibition of speed on a highway, and a person shall not aid or abet in a motor vehicle exhibition of speed on any highway.

Note: Some common acts which are treated as exhibition of speed include: burning or squealing tires or other forms of allowing tires to lose traction, performing “wheelie” maneuvers on a motorcycle, doing other types of motorcycle stunts, or accelerating at a high rate of speed from a stop light/sign or from a lesser moving speed.

Possible Penalties:

A person convicted under this section can be receive a fine of up to $500, or up to 90 days in jail. In most counties, the $500 fine is considered a “base fine”, and the actual fine imposed is likely to be higher. A conviction for this offense will appear on your criminal record as a misdemeanor offense, and will place 2 points on your DMV driving record. As with other 2 point violations, there is no option to attend traffic violators school to remove points.

Elements of the Offense:

To obtain a conviction under this section, the prosecutor must show that:

1.The accused drove a vehicle on a highway, and
2.The accused engaged in a willful act that amounted to an exhibition of speed.

Explanation of the Law

A “motor vehicle” includes any type of motorized vehicle such as a car or motorcycle.
The term “willfully” means that the accused person did the act itself on purpose. The prosecutor does not need to show that the person intended to violate the law or engage in other harmful or offensive conduct. To satisfy the element of willfulness, it is sufficient that the prosecution show the accused intended to make the tires on their car “burn rubber.”
However, the prosecution does need to show that the driver intended to “exhibit” or show off to another person. The prosecution does not have to somehow prove that the defendant actually formed the desire to “show off” in his/her mind prior to, or while performing the act. The defendant's intent to impress or annoy others can be established through circumstantial evidence. The prosecution can prevail on this element simply by showing that other people were present who could view the defendant's act, even if they are people the defendant did not personally know, i.e. people in other vehicles on a public roadway or pedestrians. Generally however, the defendant has to be aware of the presence of an observer in order to show the intent to exhibit. Yet the satisfaction of this part of the element depends on how the trier of fact (the judge or jury) views the defendant's conduct in light of the surrounding circumstances.
A person may be considered and observer even if they are in or on (in the case of a motorcycle) the same vehicle as the defendant, i.e. a driver performing an exhibition of speed in a desolate area with no other people around may still be convicted of the offense if there is a passenger is in the vehicle who could observe the action.
The word “highway” means any public road. Thus a person can be cited for an exhibition of speed regardless if it occurs on a freeway, county road, or a street in a residential or commercial area.

Defenses:
Vehicle's mechanical defects: in cases where the act occurred not as the result of the defendant's intent, but rather due to a malfunction of the vehicle, the defendant could attempt to negate the “willful” element of the offense.
Lack of sufficient observation by citing officer: In California, misdemeanor traffic offenses must occur within the presence of an officer in order for a citation to be issued. In some cases, an officer may be stopped or driving behind other vehicles and may hear sounds leading him/her to believe an exhibition of speed is taking place in the area and that one particular vehicle is responsible. However, the officer must have a proper vantage point to support his reasonable suspicion, and must obtain sufficient facts to hold one driver in particular accountable. An experienced traffic trial attorney such as Michael Rehm can challenge the officer's observations on cross examination and point out weak spots in his/her testimony.
Mistaken Identification: Related to the last defense discussed, there can be times when an officer can make a mistake as to the driver responsible for an exhibition of speed. This often occurs where there are numerous motorcyclists traveling together during a suspected act of exhibition of speed. Due to the way that the motorcycles may be grouped together, or the use of similar clothing/helmets, officers may mistakenly stop the wrong person. If you believe you are the victim of a mistaken identity in a traffic stop, an attorney can help you in challenging the officer's decision to issue you a citation.

How an attorney can help:

An attorney can represent you in your exhibition of speed case from the initial appearance through the court trial stage. In many cases, the attorney can appear on your behalf so that you don't have to step foot in a courtroom at any time. The attorney can also negotiate on your behalf to try to reduce the applicable fines, or even to reduce the charges to a lesser infraction which may qualify for traffic school. Even if traffic school is not available, infractions will automatically be dropped from your DMV record in three years time.

Resources:

Speed Contest Charge

Attorney Michael Rehm Contact Info

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The Law Office of Michael Rehm is a DUI and Criminal Defense Law Office that practices throughout San Diego County. Michael Rehm is available for free, confidential consultations at (619) 787-3456.