California Vehicle Code § [Section] 23109 (a) – Speed Contests
California Vehicle Code [CVC] §23109(a) – Speed Contests – Section 23109(a) of the Vehicle Code makes it illegal to race any motor vehicle on a highway in a speed contest. The offense is also known as Exhibition of Speed or “Speed Ex.”
If you're convicted under CVC §23109(a), the penalty may be: ninety days in a county jail, or a fine of up to $1000, or both jail time and a fine. Forty hours of community service will also be required of you.
What Does California Vehicle Code §23109(a) [Speed Contests] Prohibit?
In sum, to be guilty of violating the Speed Contests law under CVC §23109(a), you must:
- Drive a motor vehicle on a highway; AND,
- Participate in an exhibition of speed.
Defining “Speed Contests” Under California Penal Code §23109(a)
To convict you under CVC §23109(a), the prosecutor must prove the following beyond a reasonable doubt:
- MOTOR VEHICLE: You drove a motor vehicle; AND,
- HIGHWAY: You drove on a highway; AND,
- EXHIBITION OF SPEED: You engaged in in an exhibition of speed; AND,
- WILLFULLY: You acted willfully.
Note: While the prosecutor must prove beyond a reasonable doubt that you exhibited speed to impress someone, it doesn't have to be shown that you intended on impressing a particular person.
Example: Defendant David, a mechanic, has a newly rebuilt classic hotrod car. He wants to show it off to Neighbor, who fancies himself a “grease monkey.” David invites Neighbor to watch him demonstrate the hotrod's speed by tearing along their residential street. They do so. But Neighbor's Wife, a police officer who witnesses the display, arrests David for violating §23109(a). David insists that he did not drive in a place to which the law really applies; thus, he says, he is innocent. Is he guilty under the circumstances?
Conclusion: David willfully drove his motor vehicle in an exhibition of speed on a residential street – which is considered a “highway” under California state law. He drove at a high rate of speed to impress Neighbor; the facts make this clear. These are the elements necessary for a conviction. David should be convicted of the violation.
Penalties For Speed Contests Under CVC §23109(a)
- Statutory Penalties
If you are convicted under CVC §23109(a), the penalty may be up to ninety (90) days in a county jail, a fine of up to $1000 (one thousand dollars), or both jail time and a fine. You will also have forty (40) hours of community service assigned to you to complete. The court may also order your license “to operate a motor vehicle [be] suspended for 90 days to six months” for most purposes, although probation is not impossible, in appropriate cases.
- Plea Bargaining and CVC §23109(a)
Defense attorneys often use CVC §23109(a) as an alternative to pleading guilty to a charge of Driving Under the Influence (DUI) because, while options such as Reckless Driving (CVC §23103) and “Wet Reckless” (CVC §23103.5) are available for pleading purposes, pleading guilty to a charge under CVC §23109(a) exposes you to none of the more serious consequences of an alcohol-related guilty plea.
Defenses Against California Vehicle Code §23109(a) – Speed Contests
Three common defenses against a charge of Speed Contests under CVC §23109(a) are:
The Evidence Against You Is Insufficient
Example: Defendant Deirdre stole flowers from Victim Vera's flowerbed. Vera knows it, as does Deirdre. However, since Vera can't prove the theft, she reports Deirdre for driving “like a damned maniac” on her street. Police arrest Deirdre and charge her under CVC §23109(a). Deirdre insists that she never did anything like what Vera claims. She also says that she can't be guilty on these facts. Is she correct?
Conclusion: Police didn't see Deirdre driving. Thus, in arresting Deidre, they relied entirely on second-hand information. But considering the nature of the offense, if police do not witness the crime, there can be no effective charge. Here, while police would be required to provide evidence as eyewitnesses, they didn't see anything. Deirdre, thus, should be acquitted. The evidence against her is insufficient.
You Were The Victim Of Police Misconduct
Example: Defendant Dominica recently broke up with Cop. It didn't go well. Dominica begins to fear that Cop is planning revenge. She knows her fear is well-founded when Cop pulls her car over one night and arrests her for violating §23109(a). Dominica didn't engage in a speed contest. Should she be convicted?
Conclusion: Dominica did not violate the law; she simply angered Cop when she ended their relationship. For this, he sought retribution. Thus, Dominica is being wrongfully accused of a crime by a law enforcement officer. This fact alone must invalidate the arrest as completely unconstitutional. Dominica, it follows, should not be convicted of the charge. She was the victim of police misconduct.
You Didn't Act Willfully
Example: Defendant Derrick drinks three espresso coffees one morning before work. He washes down his new medication with the final cup. Unbeknownst to Derrick, the combination of caffeine and the drug in his medicine produces euphoric rushes of energy. Soon he finds himself following a drug-induced impulse to race Young Man along the highway. Officer sees the display and arrests Derrick for a speed contest punishable under CVC §23109(a). Derrick's doctor never explained the dangers of taking his medication as Derrick did; thus, Derrick says, the incident isn't his fault. Is he correct or is he guilty?
Conclusion: Derrick engaged in a display of speed with a motor vehicle on a public highway. Officer witnessed it. Derrick's arrest would be rightful, normally, given these facts. But Derrick took his medication without knowing that caffeine would produce an effect his clouding capacity to think. Derrick's doctor didn't explain this possibility to him. Thus, the defense of involuntary intoxication is available to Derrick, which, in turn, negates evidence of the element of willfulness. If even one element of a crime can't be proven beyond a reasonable doubt in a California court, the judge or jury must find for the defendant. Derrick, therefore, is correct. He should be acquitted because he didn't act willfully.
Note: The crimes below are described generally as “related” because they're frequently charged with CVC §23109(a) and/or have common elements the prosecutor must prove beyond a reasonable doubt.
California law includes multiple offenses related to Speed Contests, including: Exhibition of Speed Resulting in Bodily Injury (CVC [Sections] §§23109(c), (e)(1)), Reckless Driving (CVC §23103(a)), “Wet Reckless” Driving (CVC §23103.5(a)) and Evading An Officer (CVC §2800(a)).
Exhibition of Speed Resulting in Bodily Injury
Exhibition of speed is also criminalized in CVC §§23109(c), (e)(1). The offense is identical to Exhibition of Speed under Section (a), except that the display of speed must “proximately cause[ ] bodily injury to a person other than” yourself to be punishable under the relevant subparts.
If you're convicted of Exhibition of Speed Resulting in Bodily Injury, the penalty may be:
- A term of up to six (6) months in a county jail; OR,
- A fine of up to $1,000 (one thousand dollars); OR,
- Both jail time and a fine.
Note: If convicted under CVC §§23109(c), (e)(1), you will serve a minimum of thirty (30) days in a county jail and pay at least $500 (five hundred dollars) in fines.
California Criminal Jury Instructions – Exhibition of Speed Resulting in Bodily Injury
To convict you under CVC §§23109(c), (e)(1), the prosecution must prove the following beyond a reasonable doubt:
You drove a motor vehicle on a highway, where you willfully engaged in a speed contest that was a substantial factor in causing someone other than yourself to suffer bodily injury.
Example: Defendant Diego races his car against Victim Vincente's truck on Hollywood Boulevard one weekend night. The contest ends with Diego crashing into Vincente. The accident almost kills Diego. Vincente was not hurt. Later, when he's stable in the hospital, Diego is placed under arrest for violating CVC §§23109(c), (e)(1). Diego insists he has to be innocent. Should Diego be convicted on these facts?
Conclusion: Diego willfully drove his car in a speed contest staged on a public highway (a boulevard). The race produced a near-fatal accident. But the victim of the accident was Diego, the driver charged with violating the Vehicle Code section. (Vincente wasn't injured at all.) But to violate the relevant Code subparts, the defendant has to to have injured someone other than the defendant. Therefore, while he can be charged under another part of the Vehicle Code section, Diego should be acquitted as charged.
California's Reckless Driving (CVC §23103(a)) law makes it a crime to drive “a vehicle upon a highway in willful or wanton disregard for the safety of persons or property[.]” You don't have to intend to cause damage to violate the law. The crime is related to Speed Contests because driving punishable under CVC §23109(a) often also constitutes recklessness, permitting charges of both crimes in the same trial.
If you are convicted of Reckless Driving under Section (a), the punishment may be:
- A term of up to ninety (90) days in a county jail; OR,
- A fine of up to $1,000 (one thousand dollars); OR,
- Both jail time and a fine.
Note: If convicted under CVC§23103(a), you will serve a minimum of five (5) days in a county jail and pay at least $145 (one-hundred forty-five dollars) in fines.
California Criminal Jury Instructions – Reckless Driving
To convict you under CVC §23103(a), the prosecution must prove the following beyond a reasonable doubt:
You intentionally drove a vehicle with wanton disregard for the safety of persons or property on a highway or in an off-street parking facility.
Example: Defendant Devon wildly drives his car along a Reseda street. He nearly strikes two cars and narrowly misses Pedestrian, who immediately reports him. Police, responding to the call, see Devon's driving and arrest him. Devon is charged under CVC §23103(a). While he admits to knowingly driving in a way which created a serious risk to persons and property, he defends himself by pointing out that he did not hit Pedestrian or either of the cars. Should Devon be convicted under these circumstances?
Conclusion: Devon intentionally (and admittedly) drove a motor vehicle in a way that created a substantial risk affecting persons and property. He did so on a public highway. These are the elements of the offense. While Devon had to intend on driving in a reckless manner (which he did), he didn't have to intend on causing any sort of damage. Nor did he have to do so. Devon did everything necessary to violate the law simply by driving as he did. He should be convicted on these facts.
“Wet Reckless” Driving
The “Wet Reckless” Driving law (CVC §23103.5(a)) actually creates an alternative to admitting guilt if you've been charged with Driving Under the Influence (DUI). When you admit to a violation of Vehicle Code Section §23103 (Reckless Driving; see above) while having an alcoholic beverage or a drug in your system, and your negotiated plea is accepted by the court, your ‘wet' violation of the Reckless Driving law will become a “prior offense” for purposes of several sections. You may also be required to take a drug and alcohol education program. However, probation, if granted, is often only a year or two. “Wet Reckless” Driving is related to Speed Contests because driving punishable under CVC §23103.5(a) often also involves speed contest activity for purposes of §23109(a).
If you're convicted of “Wet Reckless” Driving for the first time, the penalty may be:
- Punishment consistent with a violation of CVC §23103; AND,
- Entry of DUI conviction for purposes of specified sections; AND,
- The obligation to successfully complete a drug and alcohol education program.
California Criminal Jury Instructions – “Wet Reckless” Driving
To convict you under CVC §23103.5(a), the prosecution must prove the following beyond a reasonable doubt:
You had a drug or alcohol in your system when you intentionally drove a vehicle with wanton disregard for the safety of persons or property on a highway or in an off-street parking facility.
Example: Defendant Deandre admits that he drank before driving his car. He also admits that he sped through a downtown LA intersection to impress nearby pedestrians. Police Officer saw Deandre do it. Deandre was then arrested and charged under CVC §23152, the DUI law. But Deandre says that he can be charged with a “Wet Reckless,” which is less serious, since he has no prior record and will admit to driving recklessly with alcohol in his system. Should Prosecutor consider accepting Deandre's plea?
Conclusion: Deandre is willing to admit to the facts necessary for a conviction under Section 23103. He also has no prior record. Therefore, by accepting his plea, the conviction will become a prior offense for purposes of determining punishment for subsequent offenses. He may also be required to complete a drug and alcohol education program. If he's willing to attend classes, admit his conduct for the record, and if has no prior criminal history, Prosecutor should at least consider allowing Deandre to plead to the lesser included offense under CVC §23103.5(a).
Evading An Officer
Evading An Officer (CVC §2800(a)) involves willfully failing or refusing “to comply with a lawful order, signal, or direction of a peace officer” performing any official duty, and cases of refusing “to submit to a lawful inspection[.]” However, while CVC §2800(a) is normally prosecuted as a misdemeanor, it may be punished as a felony under circumstances including evading an officer while driving recklessly. This makes Evading An Officer a “wobbler” under California law. The offense is related to Speed Contests because speed contest activity often involves evasion of police pursuit or direction, permitting charges of committing both crimes in the same trial.
If you're convicted of a Felony form of Evading An Officer, the penalty may be:
- A term of up to one (1) year in a county jail; OR,
- A fine of up to $10,000 (ten-thousand dollars); OR,
- Both jail time and a fine.
Note: If you are convicted of evading an officer in a manner resulting in serious bodily injury to anyone, you may be made to serve time in a state prison.
You can always find more information in the Evading An Officer section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will always go directly to a lawyer – guaranteed.
California Jury Instructions – Evading An Officer
To convict you under CVC §2800(a), the prosecutor must prove the following beyond a reasonable doubt:
A peace officer driving a motor vehicle was pursuing you, and you, also driving a motor vehicle, willfully
fled from, or tried to elude, the officer, intending to evade the officer. There was at least one lighted red lamp visible from the front of the peace officer's vehicle and you either saw or reasonably should have seen the lamp. The peace officer's vehicle was sounding a siren as reasonably necessary. Finally, the officer's vehicle was distinctively marked, and the peace officer was wearing a distinctive uniform.
Example: Defendant Dougie is missing a front head lamp in his jeep. Police Officer, in uniform and driving a marked police cruiser, sees the condition of Dougie's vehicle and decides to issue Dougie a “fix-it” ticket. He waves for Dougie to stop. Dougie doesn't see the gesture and drives away. Police Officer thinks that Dougie saw him but is ignoring him, so Police Officer follows. Since the cruiser's siren and loudspeaker aren't operational, Dougie has no idea that Police Officer is behind him. Police Officer eventually turns on his red and blue roof lights, pulls Dougie over, and arrests Dougie for violating CVC §2800(a). Is Dougie guilty on these facts?
Conclusion: While it appears that Dougie evaded Police Officer, several elements are missing from the charge. Dougie didn't know he was being pursued by Police Officer; therefore, he could not have intended on evading the police cruiser. Additionally, Police Officer didn't have a red lamp lighted and visible until he pulled Dougie over – so, again, Dougie didn't know he was being pursued, and, therefore, couldn't have evaded Police Officer. That Police Officer didn't sound his siren also means that Dougie wasn't aurally warned he was being followed. Thus, there are three elements missing from the charge; if even one cannot be proven, a California court must find for the defendant. Dougie should be acquitted.
What Can I Do If I'm Charged With Speed Contests?
The State of California speed contests as serious offenses. If you're charged with Speed Contests, it's essential that you retain a skilled, dedicated criminal defense attorney as soon as possible. Your rights, freedom, and livelihood are at stake.
Remember, a professional criminal defense attorney may be able to:
- Negotiate a lesser charge in a plea bargain;
- Reduce your sentence;
- Or even get charges dismissed completely.
The attorneys at the Kann California Defense Group have an excellent understanding of the local courts and an extensive knowledge of California's criminal justice system. We can represent you in Ventura, Santa Clarita, Los Angeles, Encino, Pasadena and many other Southern California cities.
If you or someone you know has been arrested for, or charged with, Speed Contests, our attorneys will analyze the facts of your case and plan a strategy that will help you obtain the best possible outcome.
Contact the Kann California Defense Group today to schedule your free and confidential consultation.
 While the jury instruction heading refers to Section (c), the instructions apply to Vehicle Code Sec. 23109 (a).
 “A motor vehicle includes a passenger vehicle, motorcycle, motor scooter, bus, school bus, commercial vehicle, truck tractor and trailer,” or other type of motor vehicle. See California Criminal Jury Instructions 2202 (CALCRIM) (2017).
 “The term highway describes any area publicly maintained and open to the public for purposes of vehicular travel, and includes a street.” See above.
 “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.” See above.
 “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.” See above.
 See California Vehicle Code [CVC] §23109 (e) (1).
 See above.
 See CVC §23109 (e) (2).
 See above.
 See CVC §23103 (a).
 See CVC §23103 (c).
 See version Amended by Stats. 2016, Ch. 783, Sec. 24.
 The statute specifies Sections 23540, 23546, 23550, 23560, 23566 and 23622. See CVC §§23103.5 (c), (e), (f)(1).
 See CVC §23103.5.
 See CVC §2800 (a).
 See “Wobbler” definition at USLegal.com.
 See CVC §2800.2 (a).