"Exhibition of speed," Vehicle Code 23109(c) VC, is the act of accelerating or driving a vehicle at a dangerous speed, in order to show off or make an impression on someone else.1
In addition to being a crime in its own right, an exhibition of speed or "speed ex" is also a reduced charge frequently negotiated for during California DUI plea bargaining. While 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.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 answer the following frequently asked questions about Vehicle Code 23109(c) exhibition of speed:
- 1. What is the Legal Definition of Exhibition of Speed Under VC 23109(c)?
- 2. What are the Penalties for Vehicle Code 23109(c) Speed Ex?
- 3. How Can I Fight Charges of Vehicle Code 23109(c) Exhibition of Speed?
- 4. If I Am Charged with California DUI, Should I Try for Exhibition of Speed as a Plea Bargain?
If, after reading this article, you have further questions about Vehicle Code 23109(c) VC exhibition of speed, 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
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.
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 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
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).
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
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.
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 the defendant in the exhibition of speed case may also face charges for California grand theft auto);
- The person charged under VC 23109(c) was 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 the driver was 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 exhibition of speed and garden-variety speeding can be blurry.
Sometimes California Highway Patrol or police 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 exhibition of speed. Forms of driving that would be ignored if they took place in wealthy white areas sometimes draw harsh police 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.
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.
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 a 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)
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!
Call us for help . . .
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 office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
- Vehicle Code 23109(c) VC -- Exhibition of speed. ("(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.") See also Judicial Council of California Criminal Jury Instruction (“CALCRIM”) 2202 – Exhibition of Speed (Veh. Code, § 23109(c)). (“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.”)
- Vehicle Code 23109(i) VC – Exhibition of speed penalties. ("(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.”)
- CALCRIM 2202 – Exhibition of Speed (Veh. Code, § 23109(c)). (“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.”)
- CALCRIM 2202 – Exhibition of Speed (Veh. Code, § 23109(c)). (“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.”)
- CALCRIM 2201 – Exhibition of Speed (Veh. Code, § 23109(c), (e)(2), (f)(1)–(3)). (“[A motor vehicle includes a (passenger vehicle/motorcycle/bus/ school bus/commercial vehicle/truck tractor/ <insert other type of motor vehicle>).]”
- CALCRIM 2201 – Exhibition of Speed (Veh. Code, § 23109(c), (e)(2), (f)(1)–(3)). (“[The term highway describes any area publicly maintained and open to the public for purposes of vehicular travel, and includes a street.]”)
- CALCRIM 2202 – Exhibition of Speed (Veh. Code, § 23109(c)). (“[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.]”)
- Based on People v. Grier (1964) 226 Cal.App.2d 360.
- See same, at 364. (“While the record here is totally void of any showing that defendant [in this VC 23109(c) case] knew he was under observation, much less that he intended in any way to impress any possible observer, it was for the trier of fact to determine from the evidence adduced whether such intent [to engage in an exhibition of speed] might properly be inferred. Had this display of acceleration and peeling and screaming of tires taken place on a lonely strip of road in the Mojave desert with no one visible or within earshot, the point might have some merit. Here, the evidence showed this display took place in a highly developed and populated area.”)
- Vehicle Code 23109(i) VC – Exhibition of speed penalties. See also Penal Code 19.8 PC -- Infractions [including exhibition of speed]. ("(a) The following offenses are subject to subdivision (d) of Section 17: . . . subdivision (c) of Section 23109 . . . of the Vehicle Code, . . . .")
- Penal Code 19.8 PC -- Infractions [including Vehicle Code 23109(c) exhibition of speed]. ("(b) . . . Except where a lesser maximum fine is expressly provided for a violation of any of those sections, any violation which is an infraction is punishable by a fine not exceeding two hundred fifty dollars ($250).")
- Vehicle Code 23109.2 VC – Impoundment of vehicle after arrest for VC 23109(c) exhibition of speed. (“(a)(1) Whenever a peace officer determines that a person was engaged in any of the activities set forth in paragraph (2), the peace officer may immediately arrest and take into custody that person and may cause the removal and seizure of the motor vehicle used in that offense in accordance with Chapter 10 (commencing with Section 22650). A motor vehicle so seized may be impounded for not more than 30 days. (2). . . . (D) Exhibition of speed on a highway, as described in subdivision (c) of Section 23109. (b) The registered and legal owner of a vehicle removed and seized under subdivision (a) or their agents shall be provided the opportunity for a storage hearing to determine the validity of the storage in accordance with Section 22852. (c) (1) Notwithstanding Chapter 10 (commencing with Section 22650) or any other provision of law, an impounding agency shall release a motor vehicle to the registered owner or his or her agent prior to the conclusion of the impoundment period described in subdivision (a) under any of the following circumstances: (A) If the vehicle is a stolen vehicle. (B) If the person alleged to have been engaged in the motor vehicle speed contest, as described in subdivision (a), was not authorized by the registered owner of the motor vehicle to operate the motor vehicle at the time of the commission of the offense. (C) If the registered owner of the vehicle was neither the driver nor a passenger of the vehicle at the time of the alleged violation pursuant to subdivision (a), or was unaware that the driver was using the vehicle to engage in any of the activities described in subdivision (a). (D) If the legal owner or registered owner of the vehicle is a rental car agency. (E) If, prior to the conclusion of the impoundment period, a citation or notice is dismissed under Section 40500, criminal charges are not filed by the district attorney because of a lack of evidence, or the charges are otherwise dismissed by the court.”)
- CALCRIM 2202 – Exhibition of Speed (Veh. Code, § 23109(c)), endnote 3 above.
- Van Nuys DUI defense attorney John Murray is a leading expert in California DUI defense strategy, including plea bargain options like reckless driving and exhibition of speed. He has extensive experience both in the court systems of Los Angeles County and Ventura County and in California DMV hearings.
- Vehicle Code 12810 VC -- Traffic points [including for VC 23109(c) speed ex].