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:
- reckless driving,
- “flooring it“,
- “speed ex“, or
- street racing.
In addition to being a crime in its own right, an exhibition of speed or speed ex is also a reduced criminal charge frequently negotiated during DUI plea bargaining. While an exhibition of speed is a completely separate offense from DUI, prosecutors and judges understand that it is a common California DUI charge reduction.
This speed violation is often charged along with Vehicle Code 23103, reckless driving.
Unlike ordinary vehicular speeding, VC 23109(c) speed ex can be charged as a California misdemeanor. 1 2 Though it still carries significantly lighter penalties than
Vehicle Code 23109(c) VC reads: “(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.”
In this article, our California DUI defense attorneys will discuss 6 critical things to know about the offense:
- 1. What is the legal definition of exhibition of speed?
- 2. What are the penalties?
- 3. How can I fight charges of speed ex?
- 4. Is exhibition of speed a good plea bargain to a DUI charge?
- 5. How many points does speed ex put on my license?
- 6. How long does speed ex stay on my record?
If, after reading this article, you have further questions about California street racing laws, we invite you to contact us at Shouse Law Group.
The legal definition of an “exhibition of speed” under Vehicle Code 23109(c) VC is:
- You drove a motor vehicle on the highway; and
- While doing so, you willfully engaged in an “exhibition of speed.”3
You are considered to 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.4
California’s basic speed law (Vehicle Code 22350 VC) prohibits driving at a speed that is not safe for the given conditions. (See our related article on California street racing laws).
A “motor vehicle” under VC 23109(c), California’s “speed ex” law, 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.5
A “highway” for purposes of California Vehicle Code 23109 means any area that is publicly maintained and open to the public for purposes of 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.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 the prosecutor has to prove that you intended to show off to or impress someone in order for you to be guilty of Vehicle Code 23109(c) exhibition of speed, they do not have to prove that 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.
There are no pedestrians on the street when this happens, and no one Gordon knows is around.
Gordon may be guilty of exhibition of speed under VC 23109. There were no particular people around for whom he might have been showing off. But this took place in a populated area where plenty of people could have heard his tires squeal.
Thus, the prosecution in his speed ex case can argue that he was showing off for people in general.8
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 VC 23109(c) exhibition of speed because there really is no one around for whom she might be showing off by driving this fast.9
Under Vehicle Code 23109(c) VC, an exhibition of speed can be charged as either:
- A misdemeanor, or
- An infraction in California law.10
The prosecutor has discretion as to how to charge this offense.
If it is charged as a misdemeanor, VC 23109(c) exhibition of speed is punishable by the following penalties:
- Misdemeanor (summary) probation;
- Up to ninety (90) days in county jail; and/or
- A fine of up to five hundred dollars ($500).
Meanwhile, an exhibition of speed ticket as an infraction only carries a fine of up to two hundred fifty dollars ($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 from DUI charges.
If you are arrested for Vehicle Code 23109(c) VC exhibition of speed, the arresting officer has the right to seize the vehicle you were driving and impound it for up to thirty (30) days.13
If this occurs, then the vehicle will be released before the end of the impoundment period only if one of the following is true:
- The vehicle was stolen (in which case you may also face charges for California grand theft auto);
- You were not authorized to operate the vehicle by its owner;
- 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;
- The car was a rental car; and/or
- The prosecutor chooses not to file Vehicle Code 23109(c) speed ex charges, or those charges are dismissed.14
If you are arrested for VC 23109(c) exhibition of speed – as opposed to seeking a speed ex as a California DUI plea bargain – you and your criminal defense attorney can fight the charges with one or more of the following common legal defenses:
Your behavior was not “willful”
You are not guilty of VC 23109(c) 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 for whatever reason, and engaged in fast driving that looked like a Vehicle Code 23109(c) violation because of that.
If this is the case, your attorney can help you gather evidence and present your side of the story in order to make it clear that you are not guilty of VC 23109(c) speed ex.
There is insufficient evidence that your behavior met the definition of Vehicle Code 23109(c) VC 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’s 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 VC 23109(c) speed ex, you may be able to successfully argue to the prosecutor or a jury that there is not enough evidence that you are guilty.
Yes. Exhibition of speed under Vehicle Code 23109(c) VC is considered one of the more desirable plea deals from DUI. It can be preferable to either “wet reckless” or “dry reckless” (two of the other most common DUI plea bargains).
Whether speed ex makes sense as a DUI charge reduction for you depends on the circumstances of your DUI case.
Exhibition of speed as a DUI plea bargain has a number of important advantages over a DUI conviction. These include the following:
While California DUI typically involves a three- to five-year probation period, a California VC 23109(c) 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 county jail sentence
An exhibition of speed under Vehicle Code 23109(c) VC 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, two years, or three years.
According to Van Nuys DUI defense attorney John Murray:
“Like the shorter probation period, the shorter maximum county jail sentence for an exhibition of speed 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.”
A VC 23109(c) “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.
This is one of the most noteworthy differences between a DUI and an exhibition of speed.
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 on the new case.
This is not the situation with a Vehicle Code 23109(c) VC 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 under California Vehicle Code 23109(c) VC does not necessarily trigger a license suspension. (It does, however, add two points to your driving record.17)
Prosecutors will typically only offer a California exhibition of speed reduction in a case with evidentiary flaws. In other words, the prosecutor would only likely agree to a VC 23109(c) plea bargain from DUI in a situation where they suspect that a jury would not convict you of DUI.
Factors that they 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)
As you can see, there is certainly no guarantee that a DUI case will reduce to a VC 23109(c) speed ex. It is a charge that only a skilled California DUI defense attorney can negotiate.
Even then, certain facts must be on your side. Though the advantages of an exhibition of speed charge reduction are worth all the trouble!
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
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
In Colorado? Learn about motor vehicle speed contests (CRS 42-4-1105).
In Nevada? Learn about drag racing and unauthorized speed contests (NRS 484B.653).
- Vehicle Code 23109(c) VC. See also People v. Beeman (1984) 35 Cal.App.3d 547; People v. Vasquez (1972) 29 Cal.App.3d 81,87).
- Vehicle Code 23109(i) VC.
- CALCRIM 2202. See also Tischoff v. Wolfchief (1971) 16 Cal.App.3d 703. Also see In re Harvill (1959) 168 Cal.App.2d 490.
- CALCRIM 2202.
- CALCRIM 2201.
- CALCRIM 2201.
- CALCRIM 2202.
- Based on People v. Grier (1964) 226 Cal.App.2d 360. See also In re F. E. (1977) 67 Cal.App.3d 222.
- See same at 364.
- Vehicle Code 23109(i) VC.
- Penal Code 19.8 PC.
- Vehicle Code 23109.2 VC. Same.
- See also Vehicle Code 22651 VC.
- CALCRIM 2202. People v. Lara (1996) 44 Cal.App.4th 102.
- See Penal Code 13519.4 PC.
- Vehicle Code 12810 VC.
- California Code of Regulations Title 17, Group 8.
- Vehicle Code 12810.5 VC. See also Negligent Operator Actions, California DMV.
- See Penal Code 1203.4 PC.