Exhibition of Speed (“Speed Ex”) – A Defense Lawyer Explains

An exhibition of speed means to accelerate a driving a motor vehicle 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 has nothing to do with driving under the influence, prosecutors and judges understand that it is a common California DUI charge reduction.

It 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 But it still carries significantly lighter penalties than VC 23152(a) driving under the influence or VC 23152(b) driving with a BAC of 0.08 or higher.

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 we will discuss 4 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?
  • 4.1. What are the advantages of VC 23109(c) speed ex as a DUI plea bargain?
  • 4.2. When is the prosecutor likely to agree to an exhibition of speed as a DUI plea deal?

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

1. What is the legal definition of exhibition of speed?

The legal definition of an “exhibition of speed” under Vehicle Code 23109(c) VC is:

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

A person is considered to engage in an “exhibition of speed” if s/he 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.⁴ California’s basic speed law (Vehicle Code 22350 VC) prohibits motorists from 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

And “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

Note that you can be convicted of an exhibition of speed even if you weren’t 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, s/he does 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

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 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

2. What are the penalties?

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).

But an exhibition of speed 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 defendants who cannot afford the fine may be able to complete the equivalent number of hours of community service.)

And 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.

Vehicle impoundment

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:

1. The vehicle was stolen (in which case the defendant in the exhibition of speed case may also face charges for California grand theft auto);
2. The person charged under VC 23109(c) was 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 the driver was using the car to engage in these activities;
4. The car was a rental car; and/or
5. The prosecutor chooses not to file Vehicle Code 23109(c) speed ex charges, or those charges are dismissed.¹⁴

3. How can I fight charges of speed ex?

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.

If you are wrongly—and unjustly—accused of VC 23109(c) speed ex, you can successfully argue to the prosecutor or a jury that there is not enough evidence that you are guilty.

4. Is exhibition of speed a good plea bargain to a DUI charge?

Some people reading this article will be concerned with how to fight exhibition of speed charges – but others will be interested in how they can arrange to be charged with speed ex, as a California DUI plea bargain.

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).

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

4.1. What are the advantages of VC 23109(c) speed ex as a DUI plea bargain?

Exhibition of speed as a DUI plea bargain has a number of important advantages over a DUI conviction. These include:

• Shorter probation

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 can’t 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.  A DUI carries a maximum six-month sentence for a first offense, and one year for a second or third offense.

According to Van Nuys DUI defense attorney John Murray¹⁶:

“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.”

• Reduced fines

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. And once county penalty assessments get added, the base amount of the fine for DUI usually more than triples.

• No priorability

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 the person has prior DUI convictions.

But 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)

4.2. When is the prosecutor likely to agree to an exhibition of speed as a DUI plea deal?

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 s/he suspected that a jury would not convict you of DUI.

Factors that s/he will take into account include:

• the results of your blood or breath sample,
• the credibility of the officer who arrested you,
• the quality of the police work, and
• your criminal history.

As you can see, there is certainly no guarantee that a DUI case will get reduced to a VC 23109(c) speed ex. It is a charge that only a skilled California DUI defense attorney can negotiate--and, even then, certain facts must be on your side. But the advantages of an exhibition of speed charge reduction are worth all the trouble!

If you or a loved one is charged with Vehicle Code 23109(c) VC exhibition of speed, or charged with DUI and interested in a DUI plea bargain to an exhibition of speed, we invite you to contact us at Shouse Law Group. We can provide a free consultation in the office or by phone whether you are facing a first-time traffic ticket or a repeat felony causing serious bodily injury. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, Glendale, Pomona, Torrance, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

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).

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