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  1. #1

    Question Exhibition of Speed 23109(c)

    So I was cited for exhibition of speed a few weeks ago. I peeled out turning left onto a freeway onramp in first and second gear. The citation states only exhibition of speed 23109(c) and in the notes "peeling out in 1st & second gears". He wrote approximate speed as 25 and under "safe" wrote 5. I've looked up the CA VC on this and it states, contrary to his innitial threat of arresting me, impounding my car and me losing my license right then, that:
    23109. (a) A person shall not engage in a motor vehicle speed contest on a highway. As used in this section, a motor vehicle speed contest includes a motor vehicle race against another vehicle, a clock, or other timing device. For purposes of this section, an event in which the time to cover a prescribed route of more than 20 miles is measured, but where the vehicle does not exceed the speed limits, is not a speed contest.

    (b) A person shall not aid or abet in any motor vehicle speed contest on any highway.

    (c) A person shall not engage in ( )1 a motor vehicle exhibition of speed on a highway, and ( )2 a person shall not aid or abet in a motor vehicle exhibition of speed on any highway.

    ...

    (i) ( )8 A person who violates subdivision (b), (c), or (d) ( )9 shall upon conviction ( )10 of that violation be punished by imprisonment in a county jail for not more than 90 days, ( )11 by a fine of not more than five hundred dollars ($500), or by both that fine and imprisonment.
    Am I missing something, or is it as it says above that only after conviction I would be subject to arrest? Here are some more details:

    He tried, what seems to me, to get me to incriminate myself by accusing me of trying to "show off and look cool." My answer to that was that my only intention was getting up to speed to get onto the freeway.

    I also found online the jury instructions for a case such as mine:
    2202. Exhibition of Speed
    The defendant is charged [in Count ______] with engaging in an exhibition of speed.

    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.

    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.

    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.

    [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.]

    [A motor vehicle includes a (passenger vehicle/motorcycle/motor scooter/bus/school bus/commercial vehicle/truck tractor and trailer/ <insert other type of motor vehicle>).]

    [The term highway describes any area publicly maintained and open to the public for purposes of vehicular travel, and includes a street.]

    [The term[s] (motor vehicle/ [and] highway) (is/are) defined in another instruction to which you should refer.]
    (ref:http://www.justia.com/criminal/docs/...2100/2202.html)
    So, it seems to me that the burden is on the prosecution to prove that my intention was to show off to someone else. Well, it wasn't. I was simply a bit overzealous in my acceleration. I have to book myself at the police station. What does that mean? Will I be held at that point until arraignment and have to enter a plea, or do I just get printed/photographed and then sent on my way? Would I have access to a public defender at that point?

    There are a few circumstances I might use to argue in court, but I don't even know if fighting the ticket is worth it. I would rather do that, though, then just take the hit. I know I wasn't behaving for the sake of anybody else's opinion of me. In all reality, I think peeling out is a waste of tires and is not something I regularly or willfully do.

    My main request, if anybody is to reply to this, is for information from people with any experience in cases such as these. I haven't found any reference cases, other than exerpts from a report on an investigation of a judge. I'm working on finding a lawyer for a consultation, as I have about 8 weeks until my court date....also, would a public defender help me fight this, or encourage a plea bargain/mercy tack?

    I'm sorry for the long post, but I'm trying to be as thorough as I can in my search for information. Thanks in advance.

  2. #2

    Default Re: Exhibition of Speed 23109(c)

    I doubt that you are eligible for a public defender but you can check with the clerk of court. This is a serious offense so you need an attorney.

  3. #3

    Default Re: Exhibition of Speed 23109(c) UPDATE

    For those who may be interested, here is a response that is more or less what I was hoping to get here (much, much more, actually). This came from my uncle who is a traffic court judge in CA (Note - he is also an ex-Marine, so some of his wording is a little brash):


    Well, a legal disclaimer……. I am not a lawyer! (I have too much integrity to be a lawyer)… none-the-less, I will endeavor to provide some degree of assistance based on my experience and the information of a CHP officer friend of mine that I’ve shared this with.



    Ok, that being said go ahead and schedule your court appearance. Your ticket has a date on it. The way the wording on the ticket reads it leads you to believe that this is an exact date but it isn’t. What it really is, is a “by” date (not “bi” as in you have to go to San Francisco and wear a dress to court….. but be in court by this date) So, what you can do is show up to court on the date listed on the ticket, wait your time & when your turn comes up just give your plea of not guilty. You won’t be arrested or taken into custody. You will have to pay the ticket fine, which is akin to paying bail, in fact that’s what most courts call it, because then if you don’t show up for the scheduled trial, the courts just call you convicted and keep the ticket fine (bail) money. So, you’ll pay the bail and the court will schedule you a trial date. You will not have an opportunity to argue your case at this time; the judge will just want you to say guilty or not guilty. Do not even attempt to tell the judge “guilty with an explanation” because the judge will not want to hear it and besides, ……. guilty with an explanation is…..well, guilty. Now, if you do it this way, you will have to sit in court all day and wait your turn just to say “not guilty” and pay a big healthy fine. Not much fun. If you go to the court clerk prior to your due date, (in most courts) you can tell the clerk you intend to plead not guilty and request to skip this court date listed on the ticket and just go ahead and schedule a trial. (Again most courts, I can’t speak to the very one you are scheduled to ‘cuz I don’t know it) At this time, the clerk will likely tell you what the worst case scenario fine/bail is and if you pay it they’ll schedule your trial. If you are successful at trial, you will get your money back in 6 to 8 weeks. In most traffic offence cases there are no attorneys, even when you fight & plead not guilty. Usually it’s just you the officer, the judge and of course the audience. In your case, since it’s listed as a misdemeanor, there may be an Assistant District Attorney (DA) assigned to prosecute. When your trial date is scheduled you should ask the clerk if a DA will be assigned to court that date. The clerk may know and he/she may not know. If you can get the name of the DA prior to court, you should request a Plea Conference very often if you talk to the DA and agree to plead guilty to a lesser charge, an infraction for example or even a misdemeanor (which by the way, is just a word, its really no big deal as this is still jus a moving violation) but with an agreed upon disposition, which would basically just be the fine you already paid the DA will agree, ‘cuz they get their conviction with out any real work and without the possibility of losing the case. Before asking for a plea, you should ask the DA to drop the charges in the “interest of justice” and for lack of evidence. You should do this first explaining why this would be the just and right thing for her to do, this will give her the opportunity to make you an offer, usually the DA’s offer will be better than what you could ask for. If you don’t get to talk to the DA prior to the court date, you should get to the court early and try to find out who the DA is and talk to him/her then. If you’re not successful in finding out whom the DA is and your case is called prior to talking to the DA, you can ask the judge for a 10-15 minute recess in order to discuss a plea with the DA and, of course it’s up to the judge, but it’s likely that he’ll give you the time. But either way you need to be certain of you innocence so that you can passionately articulate your defense. You will likely NOT have a jury trial, just your side and the officer’s side presented to the judge. If you have the choice (doubtful), if the judge asks you if you’d like a judge or jury trial, ask for a jury trial ‘cuz they’d be more likely to sympathize with you than the judge, who hears liars every day.



    So your defense:

    You said your ticket lists 23109.c as the only citation. You must memorize the exact wording of this Vehicle Code (VC) just the way it is worded in the VC book, not the way it may be reported in any other publication. Since all you were cited for is 23109.c this is critical because if the officer shows up, and testifies you must be prepared to object to any and all references, statements, or violations not described by 23109.c

    This includes references, statements, & violations described in other sections of 23109!



    From the State of California 2007 Vehicle Code Book, the exact and only definition of a violation under Section 23109.c is:

    “A person shall not engage in a (1) motor vehicle exhibition of speed on a highway, and a (2) person shall not aid or abet in a motor vehicle exhibition of speed on any highway”
    1 “any” 2 (no)



    Based on the very narrow definition of the VC cited, even with the officer’s testimony, there is a lack of (this is a key word = KW) Lack of Affirmative Evidence to support the allegation that you were “actively “engaged in an exhibition of speed” Since the officer did not cite you for 23109 and 23109.c or any other additions, he cannot now go to court and change his charge against you and you cannot be shy about objecting or challenging him if he does try to go beyond what is stated in 23109.c “Since 23109.c does not specifically define exactly what exhibition of speed is, justice does not allow for me to be convicted based on an arbitrary opinion by any officer” “Had the officer included other section in the 23109 section, we might have a greater understanding of the officer’s charge, but since the officer only charged me with 23109.c we are stuck here today with only this ambiguous charge. Since there is no definition to tell us what “shall not engage in a motor vehicle exhibition of speed” means, I cannot legally be guilty of the supposed violation.

    Now, when the officer does start to bring up other things, like I said you have to object. For the judge to sustain your objections, they must be legal objections, not just ‘cuz you don’t like what the officer is saying. One objection would to be “Objection: outside the scope of the charges. Your honor, the only charge recorded on the officers (KW) sworn declaration (the ticket) was the 23109.c charge. For the officer to change his charge (KW) verbally at this time would be a (KW) violation of due process.

    “Your honor, it is generally accepted in courts of law that evidence collected and reports written (KW) at or near the time of the event are considered more accurate than reports changed, modified, or altered months later, as the officer is attempting to do here” “In fact the (KW) published case law Downer, requires reports to be written at or near the time of the event normally considered within one week. In this case the (KW) best evidence is the ticket written at the time of contact and on that ticket the only charge is 23109.c with no other explanation of exactly what caused the officer to believe I was engaging in any exhibition of anything let alone speed. For example, was there an additional charge of actually speeding? No, was there an additional charge of excessive lane changes or of unsafe lane changes? No. was there an additional charge of tail-gaiting or racing? No”



    When you cross-examine the officer, one of the first questions you should ask him is “without referencing any documents or reports you brought here today, do you have an (KW) Independent recollection of the contact you had with me on -- -- -- such and such date?” it is most likely the officer will say yes, don’t worry you can easily impeach that statement.

    Then ask the officer if he reviewed any notes, reports or any other document prior to his testimony here today. If he say’s he did, you need to ask him exactly what he reviewed. If it is anything other than the ticket, he has violated your due process rights by not making those notes or reports available to you for review prior to court. You can bring this up to the judge and ask for time to review the documents. You can also ask the judge to restrict the officer to testify only on information provided on the citation. If the judge overrules your objection don’t worry about it, just continue to ask the officer if he felt you were driving too fast why didn’t he cite you for 22350 VC “unsafe speed for prevailing conditions” or whatever contentions he makes, in other words if he articulates anything other than the exact wording of 23109.c you challenge him and ask why he didn’t included it on his (KW) sworn affidavit signed under penalty of perjury (the ticket). Then, “now officer was there anything else that you thought about charging me for? For example, officer did you consider charging me with disorderly conduct? Or with evasion? Or drugs or alcohol? Would you characterize this stop and contact as “routine”? (There’s a reason to go down this road. What you’re trying to do is get him to say just this one generic violation because remember he said he had an Independent recollection of the event.

    After you’ve done that a couple of times, then attack his (also sworn under penalty of perjury) testimony that he has an “independent recollection” of the event. “Officer, how many days ago was this event? Officer, how many days have you worked since this event? Officer, how many days vacation have you had since this event? Officer, how many citations have you written since this event? Officer, during the course of your official duties as an officer, how many citizens have you contacted since this event that you within your discretion decided not to cite but instead let off with a warning? Officer, as a traffic officer, how many vehicles have you observed driving since the time you observed my driving?

    Ok so officer, since you testified that you had no other violations to cite me for than just the 23109.c what exactly was it about your contact with me that gives you credibility to swear that you have an Independent Recollection of the events. (Officer states: well you peeled out and spun your tires) OK since that date all these weeks ago, and all the hours you’ve spent on the road, all the miles you’ve driven both on and off the job, all the traffic you’ve observed, have there been no other events when you heard or saw tires breaking traction? So what was it about OUR contact that makes you so certain of each and every event? Do you remember what were the news headlines of the day? Do you remember the color of the car that was in front of my car? What about the car behind me? Is it at all possible that even one little bit of your memory of the event of (such and such date) may not be 100% accurate. (if the officer say’s yes, than you ask the judge to rule the officer’s testimony is not credible because he testified under oath that he did have an independent recollection of the event, if he say’s no, you ask the judge to rule the testimony is not credible because it is (KW) not reasonable that any person, but especially an officer, who’s job is to observe traffic, and who during the course of his duties, must have driven hundreds of miles and observed thousands upon thousands of other vehicles, stopping many of them for violations, citing some of them and warning others, to have a recollection of these events. Especially since the officer testified that the stop and contact was “routine.”

    “Officer you stated that you initiated the stop because my tires lost traction with the road. Do you cite every single driver, every single time you observe tires losing traction?” “Are there times when a driver’s vehicles tires might lose traction through no fault of the driver?” “Officer, are you aware of the last time the section of roadway I was driving on, was cleaned?” “Officer, can you testify under oath (KW) as an affirmative fact that there was no oil or debris on the road” (if the officer say’s yes ask how. Ask what scientific study he did on the asphalt--- no that’s not silly, that’s good cross examination—ask if the officer conducted a lane closure to physically and visually inspect the roadway. If he say’s he looked at the road and didn’t see anything, ask him if there were any card driving on the road ask if (KW) Is it possible for there to be a thin layer or film of oil or other substance that you could not observe from your vantage point….what 20,30,40 feet away? The officer MUST state its possible ‘cuz it IS!

    “Now officer during our contact, did you ever ask me why my tires broke traction”

    “Officer in your professional opinion, is there ever a case where a vehicles tires might lose traction that would not indicate an exhibition of speed?”

    “Since you did not ask me why my tires broke traction, why is it that you just assumed that in my case it was an exhibition of speed, was I driving side by side racing another vehicle or anything?”

    “Officer, when a vehicle is entering the freeway, how fast is the vehicle supposed to be driving when it merges with the other traffic?” “Officer, are you aware that on page 44 of the 2007 DMV California Driver Handbook (bring one with you and ask to have it marked for evidence) it states “Enter the freeway at or near the speed of traffic.” Then it says (Remember that the maximum speed allowed is 65 mph on most freeways) but you weren’t cited for speeding so that’s not an issue.

    Officer, (KW) Isn’t it true, that earlier in the day prior to our contact it had rained or heavily drizzled? And isn’t it true that after a rain even a very light rain the oils deposited on the streets by other vehicles can cause someone to lose traction? Officer, is it at all possible, that any one of a number of vehicles that had traveled on the on-ramp just prior to me, could have been burning oil or other substances, and those substances, in conjunction with my trying to conform to the rule of merging with traffic at the top of the on-ramp could have caused my tires to briefly lose traction without any intent on my part to exhibit excessive speed? And officer, did I in fact ever exceed the posted speed limit? Finally officer, do you know as an affirmative fact that I purposely broke traction on my tires to exhibit speed?


    Ok from the above you can see how really, it’s pretty easy to mount a defense. I’ve fought 4 tickets in court and helped one other person fight her ticket in court. I won all 4 of mine, and although my friend lost hers ‘cuz she was too shy or timid to challenge the officer’s testimony and wasn’t sure about speaking in court, but she still got her fines reduced just by fighting.



    Now THIS is what I call a response. I hope it helps anybody who reads this thread who may be in the same situation as me. If you see any problems with the above, please share them with the board.

  4. #4
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    Oct 2005
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    California
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    Default Re: Exhibition of Speed 23109(c)

    Quote Quoting chuckycheese
    View Post
    Surely, this must be some sort of joke......
    I'm sure my earlier comment could be construed as being rather mean but I think you'd do well to talk with a real attorney who knows the realities of the law and traffic court, in general.

    In my humble opinion, most of the questions you've been advised to ask the officer will irritate the court and be considered to be immaterial, unrelated, irritating and downright silly. For example, the officer isn't being paid to remember newspaper headlines; he's paid to enforce traffic laws. Legal advice is often worth what you pay for it and should, at least, be considered as such.

  5. #5
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    Dec 2004
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    Default Re: Exhibition of Speed 23109(c)

    Here's my $.02. I don't know where you found those "jury instructions", but they rely heavily (along with your "uncle's" advice) on the words "willfully" and "purposely". Yet, the statute reads:
    Quote Quoting CVC 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.
    Not one mention of intent! Therefore, any interpretation of the law which requires "intent" as an element must be based on case law. Neither of you have cited any cases to that affect.

    You are certainly free to follow your "uncle's" advice (reads like something off of one of those "trial by ambush" web sites), but please remember what Chucky said about irritating the court. If you're found guilty:
    Quote Quoting CVC 23109
    (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.
    Keep in mind that the officer is going to testify that you "peeled out" in first AND second gears. If you ask if it rained earlier, he will say something like, "I don't recall, but I'm not in the habit of handing out citations for infractions that might have been caused by the weather." From my viewpoint it's the "first AND second" gear thing that's hard to beat. Anyone can see momentarily losing tracking on a slick road -- but through first AND second gears? Nah!

    So, my advice -- get a lawyer.

    Good luck,
    Barry

  6. #6

    Default Re: Exhibition of Speed 23109(c)

    Quote Quoting blewis
    View Post
    Here's my $.02. I don't know where you found those "jury instructions", but they rely heavily (along with your "uncle's" advice) on the words "willfully" and "purposely". Yet, the statute reads:Not one mention of intent! Therefore, any interpretation of the law which requires "intent" as an element must be based on case law. Neither of you have cited any cases to that affect.

    You are certainly free to follow your "uncle's" advice (reads like something off of one of those "trial by ambush" web sites), but please remember what Chucky said about irritating the court. If you're found guilty:

    Keep in mind that the officer is going to testify that you "peeled out" in first AND second gears. If you ask if it rained earlier, he will say something like, "I don't recall, but I'm not in the habit of handing out citations for infractions that might have been caused by the weather." From my viewpoint it's the "first AND second" gear thing that's hard to beat. Anyone can see momentarily losing tracking on a slick road -- but through first AND second gears? Nah!

    So, my advice -- get a lawyer.

    Good luck,
    Barry

    Thank you for the responses. And just to clear the air, I have an appointment with an attorney in the morning, so that angle is covered. Here is the website where I found the jury instructions: http://www.justia.com/criminal/docs/...2100/2202.html I'm not sure how accurate or current it is, but it's the most I could find. If someone has access to something more authentic, please post it up.

    I know that the best advice in this situation will come from a lawyer. Pretty much the same as any other case where one is to be involved with the justice system. I'm glad places like this site exist, where people can discuss options and strategies in an effort to be more informed when it comes time to go to court.

    I will continue to update this thread, as there isn't much follow-through with this particular topic.

  7. #7
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    Jan 2006
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    Default Re: Exhibition of Speed 23109(c)

    I actually like the advise given by your uncle. I think it would be rather difficult to prove that your intentions were to "impress some other person". It seems to me that the officer would have to present some evidence of this "other" person. I think he had other, more appropriate charges to choose from.

    I hope you DO keep us posted. This one will likely apply to me some day (389ci. GTO) so I'll be cut'n and paste'n it for my records

    One recommendation.. park you hotrod a couple blocks away from the courthouse. I thought I had an Unnecessary Noise charge won.. until the cop pointed out my car to the judge through the courtroom window... ("GUILTY")

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