Exhibition of Speed (Speed Ex) – Law, Penalties & Defenses

Under California Vehicle Code 23109(c) VC, an exhibition of speed is a traffic violation that can be charged when you accelerate to a dangerously high rate of speed, often done for amusement or to draw the attention of bystanders. The act is also commonly referred to as:

• “speed ex”, or
• street racing.

An exhibition of speed is often charged along with reckless driving. In addition, many DUI charges are plea-bargained down to an exhibition of speed.

Unlike ordinary speeding, speed ex can be a misdemeanor charge.¹ Though it carries significantly lighter penalties than such misdemeanors as:

• VC 23152(a) – driving under the influence or
• VC 23152(b) – driving with a BAC of .08% or higher.²

In this article, our California DUI defense attorneys will discuss six critical things to know about the offense:

• 1. Elements of the Crime
• 2. Penalties
• 3. Defenses
• 4. DUI Plea Deals
• 5. License Points
• 6. Expungements
• Additional Reading

If, after reading this article, you have further questions about California street racing laws, we invite you to contact our criminal defense attorneys at Shouse Law Group.

1. Elements of the Crime

For you to be convicted of “exhibition of speed” under California Vehicle Code 23109(c) VC, prosecutors have to prove beyond a reasonable doubt the elements of the jury instructions:

1. You drove a motor vehicle on the highway; and
2. While doing so, you willfully engaged in an “exhibition of speed.”³

A “motor vehicle” includes any of the following:

• A passenger vehicle (such as a car or pickup truck);
• A motorcycle;
• A bus or school bus;
• A commercial vehicle; or
• A truck tractor.⁴

A “highway” means any area that is publicly maintained and open to the public for vehicular travel. It includes pretty much all streets but does not include private property that is

• maintained by private entities and/or
• not open to the public for vehicle travel.⁵

You engage in an “exhibition of speed” if you accelerate or drive at a rate of speed that is dangerous and unsafe in order to show off or make an impression on someone else.⁶

You can be convicted of an exhibition of speed even if you were not exceeding the speed limit. Simply accelerating too fast (for example, fast enough for your tires to squeal) is often the basis of VC 23109(c) charges.

Interestingly, even though prosecutors have to prove you intended to show off to or impress someone, they do not have to prove you intended to impress any particular person.⁷

Example: Gordon pulls out of a driveway with his tires squealing, speeds down a residential street to the end of the block, then makes a right turn with another rapid acceleration that causes his tires to squeal again.

Gordon may be guilty of VC 23109(c). There were no particular people around for whom he might have been showing off. However, this took place in a populated area where plenty of people could have heard his tires squeal.⁸

BUT

Example: In the middle of the summer, Rebecca drives to a deserted road in the middle of the Mojave Desert and drives her sports car at over 100 mph.

Rebecca is probably not guilty of speed ex because there really is no one around for whom she might be showing off her vehicle speed.⁹

2. Penalties

Violating California Vehicle Code 23109(c) VC can be charged as either:

• A misdemeanor, or
• An infraction (like most traffic tickets and citations).¹⁰

The prosecutor has discretion as to how to charge this offense. You are more likely to get charged with a misdemeanor if you have prior convictions.

If charged as a misdemeanor, exhibition of speed is punishable by:

• Misdemeanor (summary) probation;
• Up to 90 days in county jail; and/or
• A fine of up to $500.¹¹

Meanwhile, an exhibition of speed ticket as an infraction only carries a fine of up to $250. It will not lead to jail time or probation.¹²

(Note that if you cannot afford the fine, you may be able to complete the equivalent number of hours of community service.)

Regardless of whether speed ex is charged as a misdemeanor or an infraction, the penalties are going to be less burdensome than California DUI penalties. This is why speed ex is such a sought-after plea deal.

Vehicle Impoundment

If you are arrested for VC 23109(c), the arresting officer has the right to:

• seize the vehicle you were driving and
• impound it for up to 30 days.¹³

The vehicle will be released before the end of the impoundment period if either:

1. The vehicle was stolen (in which case you may also face charges for California grand theft auto);
2. You were not authorized to operate the vehicle by its owner;
3. The owner of the car was not a driver or passenger in the car when the alleged speed contest or exhibition of speed occurred, or was unaware that you were using the car to engage in these activities;
4. The car was a rental car; and/or
5. The prosecutor chooses not to file speed ex charges, or those charges are dismissed.¹⁴

3. Defenses

If you are arrested for exhibition of speed – as opposed to seeking a speed ex as a California DUI plea bargain – we can fight the criminal charges with one or more of the following legal defenses.

Your Behavior Was Not “Willful”

You are not guilty of exhibition of speed unless the prosecutor can prove that you acted “willfully.”¹⁵

Maybe you have a physical or medical condition that led you to accelerate at an unusual rate while driving. (This happens especially frequently with elderly drivers.)

Or maybe you feared for your safety and engaged in fast driving that looked like a Vehicle Code 23109(c) violation.

If this is the case, we can help you gather evidence and present your side of the story in order to make it clear that you are not guilty of an exhibition of speed.

Your Behavior Did Not Qualify as Exhibition of Speed

The line between an exhibition of speed and garden-variety speeding can be blurry.

Sometimes California Highway Patrol or law enforcement officers will try to turn a speeding case into a Vehicle Code 23109 VC case

• in order to increase their arrest numbers, or
• just because they are having a bad day and want to take it out on a hapless motorist.

It is also common for police misconduct and/or racial profiling to be involved when someone is arrested for an exhibition of speed. Forms of driving that would be ignored if they took place in wealthy white areas sometimes draw harsh police officer reactions in poorer, largely minority neighborhoods.¹⁶

If you are wrongly – and unjustly – accused of speed ex, we may be able to successfully argue to the prosecutor or a jury that there is not enough evidence to prove you guilty.

4. DUI Plea Deals

Exhibition of speed under Vehicle Code 23109(c) VC is considered one of the more desirable plea deals in a California drunk driving case. It can even be preferable to either

•  wet reckless or
•  dry reckless,

which are two of the other most common DUI plea bargains.

Whether speed ex makes sense as a charge reduction for you depends on the circumstances of your case.

Advantages of Speed Ex as a DUI Plea Bargain

Exhibition of speed as a plea bargain has a number of important advantages over a drunk driving conviction. These include the following:

Shorter Probation

While DUI typically involves a three- to five-year probation period, speed ex generally only carries one to two years of probation.

This is important if you

• were to get arrested for a new crime or
• otherwise do something that violates the terms of your probation (such as driving with any measurable amount of alcohol in your system).

You cannot be sentenced to a probation violation if you are no longer on probation.

Shorter Jail Sentence

An exhibition of speed carries a maximum 90-day county jail sentence.

Meanwhile, a DUI carries a maximum six-month sentence for a first offense, and one year for a second or third offense. For a felony DUI, the sentence is:

• 16 months,
• 2 years, or
• 3 years.

According to Van Nuys DUI defense attorney John Murray:

“Like the shorter probation period, the shorter maximum county jail sentence for a speed ex plea bargain becomes especially critical in the event that you do something that would constitute a probation violation. If you get punished for a probation violation, the maximum sentence that could be imposed if the original conviction was for a speed ex is 90 days in jail. This is half or less of what you would otherwise be subject to if you were originally convicted of DUI.”

Reduced Fines

Speed ex subjects you to a maximum $500 fine, whereas a California DUI subjects you to a maximum $1,000 fine. Once county penalty assessments get added, the base amount of the fine for DUI usually more than triples.

No Priorability

A DUI (and even a “wet reckless” plea bargain) are priorable offenses. This means that if you get convicted of either offense, and subsequently pick up another DUI within a ten-year period, you will face substantially harsher DUI penalties in the new case.

This is not the situation with an exhibition of speed plea bargain. There is no automatic sentence increase because of a speed ex on your record.

No Mandatory Court-Ordered License Suspension

A California DUI conviction leads to a six-month driver’s license suspension – and this period gets longer if you have prior DUI convictions.

Meanwhile, a plea bargain to an exhibition of speed does not necessarily trigger a license suspension. (It does, however, add two points to your driving record.¹⁷)

When Prosecutor Agree to Reduce DUI to Speed Ex

California prosecutors typically offer an exhibition of speed reduction in cases with evidentiary flaws that would prevent a court from convicting you of DUI.

Factors that prosecutors will take into account include:

• whether your blood alcohol concentration was below .08% – the legal limit,
• whether your blood results showed no drugs,
• if the breathalyzer was not properly calibrated or was otherwise defective,¹⁸
• the credibility of the officer who arrested you,
• whether you have medical conditions that can cause a false breathalyzer result, such as acid reflux or GERD,
• if there is evidence that your blood test results were tainted (such as a broken chain of custody of your blood samples)
• the quality of the police work,
• your criminal history, and
• whether the police committed misconduct such as an unlawful vehicle search (which could be proven by surveillance video or eyewitness accounts)

There is certainly no guarantee that a DUI case will reduce to a speed ex. It is a charge that only a skilled California DUI defense attorney can negotiate.

5. License Points

An exhibition of speed conviction in California causes two points to go on your driver’s license. This by itself will not suspend your license. Though the DMV can suspend your license for six months if you accrue:

• 4 points in one year;
• 6 points in two years; or
• 8 points in three years.¹⁹

6. Expungements

There is no mandatory waiting period before you can petition the court to expunge your arrest/conviction records pursuant to PC 1203.4. You can file a petition as soon as the case is over.²⁰

Additional Reading

For more in-depth information, refer to these scholarly articles:

• Drag Racing, Assumption of Risk, and Homicide – Criminal Law Bulletin.
• Death Caused by Drag Racing–Criminal Liability of the Participants – Syracuse Law Review.
• Case Study on the Experience of Street Racing – Capella University.
• The road safety implications of illegal street racing and associated risky driving behaviours: An analysis of offences and offenders – Accident Analysis & Prevention.
  
• Corporate Social Responsibility And A Drag Racing Attempt In Combatting Unlawful Street Racing – Journal of Economics, Business and Management.

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