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  1. #1
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    Sep 2013
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    Default 30 Day Impound Order for Exhibition of Speed, VC 23109(C)

    My question involves a traffic ticket from the state of: Ca

    I was driving downtown in a new 2013 458 spider with Tubi exhaust a Toyota next to me accelerated hit it brakes over and over 3 or 4 times finally with a car in front of him I passed to close him in with a open clear path in a 25 mph zone hitting 40 mph , he gets behind me and passes like he is floored.I get pulled over the officer said give me the keys either your going to jail or the car is going for impound for 30 days and Im citing you for 23109 (c),I asked the officer how fast was I going he stated I don't know but he put 60 mph in a 25mph he said your admitting no guilt by signing Homeless people came out of the corners saying put him in jail.This is crazy originally he checked traffic ticket then placed misdemeanor on the ticket of course I got a lawyer I called the STOP to ask for a early release they said no. The lawyer is going to court to try a early release any ideas from you guys?

  2. #2
    Join Date
    Sep 2011
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    OH10
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    17,019

    Default Re: 23109(C) 30day Impound a Disaster

    Stop driving in an unsafe manner so your car is does not get impounded. Even if you were not racing it appears the officer clearly interpreted you were intentionally obstructing traffic.

  3. #3
    Join Date
    Sep 2005
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    California
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    20,594

    Default Re: 23109(C) 30day Impound a Disaster

    Your specific speed is not an element of VC 23109, just your actions.

    23109 (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.

    And the agency MUST release the vehicle only under 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.

    Unless your attorney can show that any of these conditions existed, he is not likely to order the release of the vehicle pursuant to a lawful impound (which is permitted for "not less than 30 days" per VC 23109.2(a)(2)(D).

  4. #4
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    Mar 2009
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    Default Re: 23109(C) 30day Impound a Disaster

    Quote Quoting 458
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    The lawyer is going to court to try a early release
    The decision to hold or release is not under the court's jurisdiction but under that of the Law Enforcement Agency that ordered the tow.

    The court is not going to have a record of your citation tomorrow or within the next few days. And until there is a case pending in court, there isn't much that the court can do for you or for your attorney. But even if there is, the process requires the legal or registered owner to request a hearing from the LEA at which time the facts will be reviewed and a decision will be made. So even if the court can get involved in the process to decide whether the impound is justified or not, it is premature to go to court at this time because the law requires that you request a hearing and the hearing is conducted by the LEA.

    Your attorney is obviously feeding you a line (assuming this happened today and assuming you were able to get an attorney on a Sunday afternoon)... Or you're feeding us one!

  5. #5
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    Sep 2013
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    3

    Default Re: 23109(C) 30day Impound a Disaster

    I do understand all the posts,However I don't think it's a 23109(c) charge or obstructing traffic I had a clear path in my lane,I also understand it will be difficult to get the car released with that charge in any event I will advise on how that plays out ,For me it's a wacky charge for what took place

    - - - Updated - - -

    Quote Quoting That Guy
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    The decision to hold or release is not under the court's jurisdiction but under that of the Law Enforcement Agency that ordered the tow.

    The court is not going to have a record of your citation tomorrow or within the next few days. And until there is a case pending in court, there isn't much that the court can do for you or for your attorney. But even if there is, the process requires the legal or registered owner to request a hearing from the LEA at which time the facts will be reviewed and a decision will be made. So even if the court can get involved in the process to decide whether the impound is justified or not, it is premature to go to court at this time because the law requires that you request a hearing and the hearing is conducted by the LEA.

    Your attorney is obviously feeding you a line (assuming this happened today and assuming you were able to get an attorney on a Sunday afternoon)... Or you're feeding us one!
    It happened last Monday the lawyer filed paperwork friday which takes 2 or 3 days to get a hearing ,I wish I was making this stuff up ,

  6. #6
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    Sep 2005
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    California
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    Default Re: 23109(C) 30day Impound a Disaster

    Quote Quoting 458
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    I do understand all the posts,However I don't think it's a 23109(c) charge or obstructing traffic I had a clear path in my lane,I also understand it will be difficult to get the car released with that charge in any event I will advise on how that plays out ,For me it's a wacky charge for what took place
    Obstruction is not an issue with 23109(c).

    You should have just stayed going the speed limit and let the other guy pass and keep going instead of playing games with him. That's what got you to where you are.

    But, you have every right to pay an attorney to argue with the police on your behalf to release the vehicle. That argument will cost you about $200 not to mention the additional hour of prep time, and travel time ... just to argue with the police department could cost you $500-$600 ... but, if you have him on retainer, you'll still have the balance of the $1,500-$2,500 you might be paying him at the start.

    It happened last Monday the lawyer filed paperwork friday which takes 2 or 3 days to get a hearing
    You have ten days to make the request for the hearing, and they have 2 business days to schedule the hearing with the registered owner or his representative. I don't see any legal grounds to compel the police to release the vehicle, and I doubt that "pretty please" is going to work. But, if you have the money to burn, knock yourself out.

  7. #7
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    Default Re: 23109(C) 30day Impound a Disaster

    Quote Quoting 458
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    I don't think it's a 23109(c) charge or obstructing traffic I had a clear path in my lane...
    I would agree with cdwjava that there was no impeding or obstruction... I disagree with your assumption that a clear path in your lane is a defense to an exhibition charge or that it would justify your actions as you were still limited by the 25 mph statutory speed limit in a business district. Furthermore, and though I wasn't there but I can tell you that from your brief description, an exhibition of speed charge appears to be warranted.

    Here is the code section in question:

    23109 (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.

    To prove your guilt, the prosecution must prove all the elements of the offense beyond a reasonable doubt. From a reading of the code section, those elements are:

    1) That you drove a motor vehicle;
    2) And you drove it on a highway;
    3) and in doing so you accelerated or drove at a rate that was unsafe and dangerous and is indicative of a willful attempt to show off or impress someone.

    But wait, there are other qualifiers. The prosecution must prove that this was a "willful" attempt not necessarily to break the law, to hurt or injure anybody but only a willful attempt to show off. There is no requirement to prove that you attempted to show off to any one person in particular only that you intended to show off.

    The legal authority for that analogy is based on case law dating back to 1964, where in People v. Grier, 226 Cal. App. 2d 360 - Cal: Court of Appeal 1964 the 2nd district appellate held as follows:

    "Exhibition" is defined as: "An act or instance of showing, evincing, or showing off; ..." (Webster's New Internal. Dict. (3d ed. 1961) p. 796.) Coupled as the word is in this statute with a prohibition against speed "contests," it may be argued that the statute requires not only an observer, but an observer known to defendant to be present and observing and an intent on the part of the defendant to impress that observer with the speed obtained--whether the impression be one of admiration, envy, disgust, fear or resentment. While the record here is totally void of any showing that defendant 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 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. The officer testified several cars passed "behind the defendant" while the officer was leaving his observation post to pursue defendant. Not only is there evidence from which it may be inferred many persons were within earshot, but there was direct testimony that observers were present. There is no merit in the contention that the observer must be one known to the exhibitor.


    In your case, and while it may be missing the element of "peeling and screaming of tires", the acceleration (not strictly "speed" but the rate at which your speed increased) was there (you say you went 25 to 40, the officer says 25 to 60, lets split the difference and assume 50) essentially doubling the speed limit, and as if that is not enough, and to add more fuel to the fire, comes unquestionable proof of the "exhibition" requirement, in the name of a Tubi Exhaust.

    And did you have an audience? Even if we toss aside the Toyota driver as well as the other car that was in the vicinity, all those homeless people who voted you should be taken to jail were watching and listening.

    This information is simply to put things in proper perspective not only with what seems to be a synopsis of how things might transpire in court, but this can also be used as the basis to deny your request for early release of your vehicle.

    Good luck to you on both fronts though. And please, do keep us updated.

  8. #8
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    Sep 2013
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    Default Re: 23109(C) 30day Impound a Disaster

    Quote Quoting That Guy
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    I would agree with cdwjava that there was no impeding or obstruction... I disagree with your assumption that a clear path in your lane is a defense to an exhibition charge or that it would justify your actions as you were still limited by the 25 mph statutory speed limit in a business district. Furthermore, and though I wasn't there but I can tell you that from your brief description, an exhibition of speed charge appears to be warranted.

    Here is the code section in question:

    23109 (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.

    To prove your guilt, the prosecution must prove all the elements of the offense beyond a reasonable doubt. From a reading of the code section, those elements are:

    1) That you drove a motor vehicle;
    2) And you drove it on a highway;
    3) and in doing so you accelerated or drove at a rate that was unsafe and dangerous and is indicative of a willful attempt to show off or impress someone.

    But wait, there are other qualifiers. The prosecution must prove that this was a "willful" attempt not necessarily to break the law, to hurt or injure anybody but only a willful attempt to show off. There is no requirement to prove that you attempted to show off to any one person in particular only that you intended to show off.

    The legal authority for that analogy is based on case law dating back to 1964, where in People v. Grier, 226 Cal. App. 2d 360 - Cal: Court of Appeal 1964 the 2nd district appellate held as follows:

    "Exhibition" is defined as: "An act or instance of showing, evincing, or showing off; ..." (Webster's New Internal. Dict. (3d ed. 1961) p. 796.) Coupled as the word is in this statute with a prohibition against speed "contests," it may be argued that the statute requires not only an observer, but an observer known to defendant to be present and observing and an intent on the part of the defendant to impress that observer with the speed obtained--whether the impression be one of admiration, envy, disgust, fear or resentment. While the record here is totally void of any showing that defendant 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 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. The officer testified several cars passed "behind the defendant" while the officer was leaving his observation post to pursue defendant. Not only is there evidence from which it may be inferred many persons were within earshot, but there was direct testimony that observers were present. There is no merit in the contention that the observer must be one known to the exhibitor.


    In your case, and while it may be missing the element of "peeling and screaming of tires", the acceleration (not strictly "speed" but the rate at which your speed increased) was there (you say you went 25 to 40, the officer says 25 to 60, lets split the difference and assume 50) essentially doubling the speed limit, and as if that is not enough, and to add more fuel to the fire, comes unquestionable proof of the "exhibition" requirement, in the name of a Tubi Exhaust.

    And did you have an audience? Even if we toss aside the Toyota driver as well as the other car that was in the vicinity, all those homeless people who voted you should be taken to jail were watching and listening.

    This information is simply to put things in proper perspective not only with what seems to be a synopsis of how things might transpire in court, but this can also be used as the basis to deny your request for early release of your vehicle.

    Good luck to you on both fronts though. And please, do keep us updated.
    Thank you for taking the time the time to explain that I will keep you all posted

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