VC23109

Vehicle Code section 23109 criminalizes (a) speed contests, (b) aiding and abetting speed contests, (c) exhibitions of speed, and (d) obstructing to aid exhibitions of speed.

M. Schneiderman, Annotation, Validity, Construction, and Application of Criminal Statutes Specifically Directed Against Racing of Automobiles on Public Streets or Highways (Drag Racing), 24 A.L.R.3d 1286 (1969)

Speed Contests

"[A] motor vehicle speed contest includes a motor vehicle race against another vehicle, a clock, or other timing device." (Veh. Code, § 23109, subd. (a).)

Two cars running "neck-and-neck" at speeds of 55MPH in a 35MPH zone is sufficient evidence of a speed contest under the old version of the statute, Vehicle Code section 601.5. (In re Harvill (1959) 168 Cal.App.2d 490, 493.)

Contest is "earnest struggle for superiority, victory, defense, etc; competition." (In re Harvill (1959) 168 Cal.App.2d 490, 492.)

Driving side-by-side with another car at 70MPH in a 30MPH zone with an agreement to leave a bar to go to one's house in separate cars is evidence of a speed contest. (Tischoff v. Wolfchief (1971) 16 Cal.App.3d 703, 706.)

PC1203.4 expungement relief for VC23109(a) is always discretionary. (PC1203.4(c)(2))

Exhibitions of speed

'Revving up' the engine and speeding at a rate of 55MPH to exhibit to passengers of another car was sufficient evidence of exhibition of speed. (In re Harvill (1959) 168 Cal.App.2d 490, 493.)

Exhibition is "Act or instance of exhibiting for inspection, or of holding forth to review; manifestation; display." (In re Harvill (1959) 168 Cal.App.2d 490, 492.)

Defendant committed an exhibition of speed when he pulled out of driveway with tires peeling and screaming loudly, then came to a stop, and then made a right turn with tires peeling, screeching, and losing traction with the road. (People v. Grier (1964) 226 Cal.App.2d 360

"Not all cases of tires 'peeling' or 'screeching' would constitute violations of the statute." (People v. Grier (1964) 226 Cal.App.2d 360, 363.)

Exhibitions of speed need not be a contest. (People v. Grier (1964) 226 Cal.App.2d 360, 364.)

The driver does not have to know there are observers in order to be guilty of an exhibition of speed. (People v. Grier (1964) 226 Cal.App.2d 360, 363.)

Burning rubber, causing smoke and black tire marks and the rear tires to lose traction is an exhibition of speed. (In re F.E. (1977) 67 Cal.App.3d 222, 225-226.)

"Acceleration so rapid as to break the traction between a vehicle's tires and the pavement may constitute an exhibition of speed within the meaning of Vehicle Code section 23109 regardless of whether another vehicle is involved or whether the posted speed limit is violated." (38 Ops.Cal.Atty.Gen. 102, 102 (1961).)

If acceleration is so rapid and unusual as to attract the attention of others, it is an exhibition of speed. The rate of acceleration, not the actual speed, is what matters. (38 Ops.Cal.Atty.Gen. 102, 103. (1961).)

Driving side-by-side with another car at 70MPH in a 30MPH zone with an agreement to leave a bar to go to one's house in separate cars is evidence of an exhibition of speed. (Tischoff v. Wolfchief (1971) 16 Cal.App.3d 703, 706.)

PC1203.4 expungement relief for VC23109(c) is always discretionary. (PC1203.4(c)(2))

Lesser offenses

VC23109(c) is a wobblette. It can be a misdemeanor or an infraction. (PC19.8(a))

Punishment

Under VC23109.5, a court cannot strike priors.

VC23109(a): Jail for 24 hours-–90 days. 40 hours of community service. Discretionary suspension of driver's license for 90 days–6 months. (VC23109(e)(1))

VC23109(a) with prior within past five years: If granted probation, 48 hours–6months and mandatory license suspension. If no probation, jail for 4 days–6 months and mandatory license suspension (VC23109(f)(1))

VC23109(a) with injury to person other than driver: Jail for 30 days–6 months (VC23109(e)(2))

VC23109(a) with one of the following injuries—loss of consciousness, concussion, bone fracture, protracted loss or impairment of function a bodily member or organ, a wound requiring extensive suturing, serious disfigurement, brain injury, or paralysis: Jail for 30 days–6 months, or county jail felony. (VC23109.1)

VC23109(a) with prior within five years with injury to person other than driver: If granted probation, 48 hours –6months and mandatory license suspension. If no probation, jail for 30 days–1year and mandatory license suspension(VC23109(f)(2))

VC23109(a) with prior within five years with serious bodily injury to person other than driver: If granted probation, 48 hours –6months and mandatory license suspension. Jail for 30 days–1year or 16 months-2 years-3 years in state prison and mandatory license suspension. n.b. AB117 made this straight state prison felony, not an AB109 county jail felony. (VC23109(f)(3)). Serious bodily injury means a serious impairment of physical condition, including, but not limited to loss of consciousness, concussion, bone fracture, protracted loss or impairment of function of any bodily member or organ, a wound requiring extensive suturing, and serious disfigurement. (PC243(e)(4))

VC23109(b): Jail for less than 90 days.

VC23109(c): Jail for less than 90 days.

VC23109(d): Jail for less than 90 days.

Statute

Vehicle Code section 23109: Speed contests and exhibitions of speed

(a) A person shall not engage in a motor vehicle speed contest on a highway. As used in this section, a motor vehicle speed contest includes a motor vehicle race against another vehicle, a clock, or other timing device. For purposes of this section, an event in which the time to cover a prescribed route of more than 20 miles is measured, but where the vehicle does not exceed the speed limits, is not a speed contest.

(b) A person shall not aid or abet in any motor vehicle speed contest on any highway.

(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.

(d) A person shall not, for the purpose of facilitating or aiding or as an incident to any motor vehicle speed contest or exhibition upon a highway, in any manner obstruct or place a barricade or obstruction or assist or participate in placing a barricade or obstruction upon any highway.

(e)

(1) A person convicted of a violation of subdivision (a) shall be punished by imprisonment in a county jail for not less than 24 hours nor more than 90 days or by a fine of not less than three hundred fifty-five dollars ($355) nor more than one thousand dollars ($1,000), or by both that fine and imprisonment. That person shall also be required to perform 40 hours of community service. The court may order the privilege to operate a motor vehicle suspended for 90 days to six months, as provided in paragraph (8) of subdivision (a) of Section 13352. The person’s privilege to operate a motor vehicle may be restricted for 90 days to six months to necessary travel to and from that person’s place of employment and, if driving a motor vehicle is necessary to perform the duties of the person’s employment, restricted to driving in that person’s scope of employment. This subdivision does not interfere with the court’s power to grant probation in a suitable case.

(2) If a person is convicted of a violation of subdivision (a) and that violation proximately causes bodily injury to a person other than the driver, the person convicted shall be punished by imprisonment in a county jail for not less than 30 days nor more than six months or by a fine of not less than five hundred dollars ($500) nor more than one thousand dollars ($1,000), or by both that fine and imprisonment.

(f)

(1) If a person is convicted of a violation of subdivision (a) for an offense that occurred within five years of the date of a prior offense that resulted in a conviction of a violation of subdivision (a), that person shall be punished by imprisonment in a county jail for not less than four days nor more than six months, and by a fine of not less than five hundred dollars ($500) nor more than one thousand dollars ($1,000).

(2) If the perpetration of the most recent offense within the five-year period described in paragraph (1) proximately causes bodily injury to a person other than the driver, a person convicted of that second violation shall be imprisoned in a county jail for not less than 30 days nor more than six months and by a fine of not less than five hundred dollars ($500) nor more than one thousand dollars ($1,000).

(3) If the perpetration of the most recent offense within the five-year period described in paragraph (1) proximately causes serious bodily injury, as defined in paragraph (4) of subdivision (f) of Section 243 of the Penal Code, to a person other than the driver, a person convicted of that second violation shall be imprisoned in the state prison, or in a county jail for not less than 30 days nor more than one year, and by a fine of not less than five hundred dollars ($500) nor more than one thousand dollars ($1,000).

(4) The court shall order the privilege to operate a motor vehicle of a person convicted under paragraph (1), (2), or (3) suspended for a period of six months, as provided in paragraph (9) of subdivision (a) of Section 13352. In lieu of the suspension, the person’s privilege to operate a motor vehicle may be restricted for six months to necessary travel to and from that person’s place of employment and, if driving a motor vehicle is necessary to perform the duties of the person’s employment, restricted to driving in that person’s scope of employment.

(5) This subdivision does not interfere with the court’s power to grant probation in a suitable case.

(g) If the court grants probation to a person subject to punishment under subdivision (f), in addition to subdivision (f) and any other terms and conditions imposed by the court, which may include a fine, the court shall impose as a condition of probation that the person be confined in a county jail for not less than 48 hours nor more than six months. The court shall order the person’s privilege to operate a motor vehicle to be suspended for a period of six months, as provided in paragraph (9) of subdivision (a) of Section 13352 or restricted pursuant to subdivision (f).

(h) If a person is convicted of a violation of subdivision (a) and the vehicle used in the violation is registered to that person, the vehicle may be impounded at the registered owner’s expense for not less than one day nor more than 30 days.

(i) A person who violates subdivision (b), (c), or (d) shall upon conviction of that violation be punished by imprisonment in a county jail for not more than 90 days, by a fine of not more than five hundred dollars ($500), or by both that fine and imprisonment.

(j) If a person’s privilege to operate a motor vehicle is restricted by a court pursuant to this section, the court shall clearly mark the restriction and the dates of the restriction on that person’s driver’s license and promptly notify the Department of Motor Vehicles of the terms of the restriction in a manner prescribed by the department. The Department of Motor Vehicles shall place that restriction in the person’s records in the Department of Motor Vehicles and enter the restriction on a license subsequently issued by the Department of Motor Vehicles to that person during the period of the restriction.

(k) The court may order that a person convicted under this section, who is to be punished by imprisonment in a county jail, be imprisoned on days other than days of regular employment of the person, as determined by the court.

(l) This section shall be known and may be cited as the Louis Friend Memorial Act.

Legislative History

Enacted Stats 1959 ch 3. Amended Stats 1967 ch 607 § 1; Stats 1983 ch 935 § 1, ch 953 § 2.5 (ch 953 prevails), ch 1092 § 395, effective September 27, 1983, operative January 1, 1984; Stats 1984 ch 216 § 12. Amended Stats 2004 ch 595 § 2 (SB 1541); Stats 2005 ch 475 § 1 (AB 1325), effective January 1, 2006; Stats 2006 ch 538 § 661 (SB 1852), effective January 1, 2007; Stats 2009 ch 193 § 3 (SB 598), effective January 1, 2010, operative July 1, 2010; Stats 2010 ch 301 § 2 (AB 1601), effective January 1, 2011; Stats 2011 ch 15 § 611 (AB 109), effective April 4, 2011, operative October 1, 2011, ch 39 § 64 (AB 117), effective June 30, 2011, operative October 1, 2011.

Jury Instructions

CALCRIM 2201:Speed Contest

The defendant is charged [in Count ] with engaging in a speed contest [in violation of Vehicle Code section 23109].

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant drove a motor vehicle on a highway;

[AND]

2. While so driving, the defendant willfully engaged in a speed contest(./;)

[AND]

3. The speed contest was a substantial factor in causing someone other than the defendant to suffer [serious] bodily injury.]

Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.

A person engages in a speed contest when he or she uses a motor vehicle to race against another vehicle, a clock, or other timing device. [A speed contest does not include an event in which the participants measure the time required to cover a set route of more than 20 miles but where the vehicle does not exceed the speed limits.]

[A serious bodily injury means a serious impairment of physical condition. Such an injury may include[, but is not limited to]: (loss of consciousness/concussion/bone fracture/protracted loss or impairment of function of any bodily member or organ/a wound requiring extensive suturing/ [and] serious disfigurement).]

[A motor vehicle includes a (passenger vehicle/motorcycle/bus/ school bus/commercial vehicle/truck tractor/  <insert other type of motor vehicle>).]

[The term highway describes any area publicly maintained and open to the public for purposes of vehicular travel, and includes a street.]

[The term[s] (motor vehicle/ [and] highway) (is/are) defined in another instruction to which you should refer.]

CALCRIM 2202: Exhibition of Speed

The defendant is charged [in Count ] with engaging in an exhibition of speed [in violation of Vehicle Code section 23109]. To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant drove a motor vehicle on a highway;

AND

2. While so driving, the defendant willfully engaged in an exhibition of speed.

Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.

A person engages in an exhibition of speed when he or she accelerates or drives at a rate of speed that is dangerous and unsafe in order to show off or make an impression on someone else.

[The People must prove that the defendant intended to show off or impress someone but are not required to prove that the defendant intended to show off to or impress any particular person.]

[A motor vehicle includes a (passenger vehicle/motorcycle/motor scooter/bus/school bus/commercial vehicle/truck tractor and trailer/  <insert other type of motor vehicle>).]

[The term highway describes any area publicly maintained and open to the public for purposes of vehicular travel, and includes a street.]

[The term[s] (motor vehicle/ [and] highway) (is/are) defined in another instruction to which you should refer.]

FORECITE F2201: Speed Contest

The defendant is charged [in Count ] with engaging in a speed contest [in violation of Vehicle Code section 23109].

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant drove a motor vehicle <describe vehicle> a on a highway;

[AND]

2. While so driving, the defendant willfully engaged in a speed contest used <describe vehicle> to race against <insert e.g., another vehicle, clock or timing device>;

AND

The defendant did so willfully.

FORECITE F2202: Exhibition of Speed

The defendant is charged [in Count ] with engaging in an exhibition of speed [in violation of Vehicle Code section 23109].

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant drove a motor vehicle <describe vehicle> on a highway;

AND

2. While so driving, the defendant willfully engaged in an exhibition of speed.

Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.

A person engages in an exhibition of speed when he or she accelerates or drives at a rate of speed that is dangerous and unsafe in order to show off or make an impression on someone else.

[The People prosecution must prove that the defendant intended to show off or impress someone but are not required to prove that the defendant intended to show off to or impress any particular person.]

CALJIC 16.860: Speed Contest

[Defendant is accused [in Count[s] ____________] of having violated section 23109, sub- division (a) of the Vehicle Code, a misdemeanor.]

Every person who engages in a motor vehicle speed contest on a [street] [or] [highway] is guilty of a violation of Vehicle Code section 23109, subdivision (a), a misdemeanor.

A motor vehicle speed contest includes a motor vehicle racing against another vehicle, a clock, or other timing device.

In order to prove this crime, each of the following elements must be proved:

1. A person drove a motor vehicle upon a [street] [highway]; and

2. The driver engaged in a speed contest.

CALJIC 16.870: Exhibition of Speed

[Defendant is accused [in Count[s] ____________] of having violated section 23109, sub- division (c) of the Vehicle Code, a misdemeanor.]

Every person who engages in [or aids and abets] any motor vehicle exhibition of speed on a [street] [or] [highway] is guilty of a violation of section 23109, subdivision (c), a misdemeanor.

An exhibition of speed is a willful act of showing off or displaying a dangerous and im- prudent speed where the presence of another person is known to the driver or may reasonably be anticipated by him.

In order to prove this crime, each of the following elements must be proved:

1. A person drove a motor vehicle upon a [street] [highway]; [and]

2. The driver engaged in an exhibition of speed[.] [; and]

[3. The defendant aided and abetted the motor vehicle exhibition of speed.]