Idiot Award: Exhibition of Speed
02-03-2008, 12:56 PM
#1
Burning Brakes
Thread Starter
Idiot Award: Exhibition of Speed
I hadn't driven shark since I broke my wrist in November. I dropped the battery in and she started right-up. I did a little maintenance then went for a spin. Once she got warm, I got into an industrial area where I thought it was safe to give her a little juice and burn some rubber. I ripped around a corner, then laid-off and cruised. Seconds later not one, not two, but three of San Jose's finest were on my bumper --one in an unmarked SUV.
They made me get out of the car, jumped in and searched it (--guess they had probable cause), sat me on the curb and questioned me thoroughly (since I happened to have left my wallet and license at home).
They told me that they could have impounded the car and it would have cost me ~$2k to get it out, but since I have a good record (first ticket in 10 years) they were going to let me off with a misdemeanor: Exhibition of speed.
I think my saving grace was that they liked the car --that and my mention of my military record. Cop: "When was the last time you were arrested?" Me: "Geez, it had to be back before I was in the Army ...'88, maybe?" Cop: "What'd you do in the Army?" Me: "
" --they turned out to be pretty cool guys.
Stupid on my part
. I didn't see the two squad cars hiding behind the unmarked SUV and came to find out that the area is a hangout for them.
I think I'll fight it in the interest of trying to keep my insurance from going up and hope that the charge gets buried in the bureaucracy somewhere --fingers crossed.
-T
They made me get out of the car, jumped in and searched it (--guess they had probable cause), sat me on the curb and questioned me thoroughly (since I happened to have left my wallet and license at home).
They told me that they could have impounded the car and it would have cost me ~$2k to get it out, but since I have a good record (first ticket in 10 years) they were going to let me off with a misdemeanor: Exhibition of speed.
I think my saving grace was that they liked the car --that and my mention of my military record. Cop: "When was the last time you were arrested?" Me: "Geez, it had to be back before I was in the Army ...'88, maybe?" Cop: "What'd you do in the Army?" Me: "
" --they turned out to be pretty cool guys.Stupid on my part
. I didn't see the two squad cars hiding behind the unmarked SUV and came to find out that the area is a hangout for them. I think I'll fight it in the interest of trying to keep my insurance from going up and hope that the charge gets buried in the bureaucracy somewhere --fingers crossed.
-T
02-03-2008, 01:31 PM
#2
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02-03-2008, 04:03 PM
#4
Race Director
PAGING RON H....................he's local and the master of speeding-related court problems.....
I would try fighting it....I think Exhibition of speed is considered reckless driving (not 100% sure) which makes in a misdemeanor and a 2 point violation..... Yes they could have towed your car for 30 days.....under the "street racing" section....
BUT if the judge is nice they might knock it down to a speed violation then you could go to traffic school....its risky..just tell the judge you were stupid & sorry & won't do it again...then pray he-she doesn't spank you!!!! :>)
I would try fighting it....I think Exhibition of speed is considered reckless driving (not 100% sure) which makes in a misdemeanor and a 2 point violation..... Yes they could have towed your car for 30 days.....under the "street racing" section....
BUT if the judge is nice they might knock it down to a speed violation then you could go to traffic school....its risky..just tell the judge you were stupid & sorry & won't do it again...then pray he-she doesn't spank you!!!! :>)
02-03-2008, 05:00 PM
#5
928 Barrister
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If it is the traffic commissioner of which I am thinking forget him giving you a break. Isn't going to happen. He is an ex-cop. He likes cops. He is an entirely different animal in court if an attorney is present as opposed to you being In Pro Per. He wil lie. He will deny your motions with shaky or no grounds. He will tell you certain Penal Code sections don't apply in his courtroom. He is impressed with legalese. The advice to hire an attorney is sound if he is going to preside over your case.
As for "probable cause", I doubt it. For what were they searching when they ordered you out of the car? Did they inform you? S.O.P. says you stay IN the car with your hands in plain sight at all times. But they haven't charged you with anything as a result of the seemingly illegal search, so why deal with it?
Maybe they were hungry and looking for some donuts.
Now to the law:
Basic Speed Law
22350. No person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent having due regard for weather, visibility, the traffic on, and the surface and width of, the highway, and in no event at a speed which endangers the safety of persons or property.
Amended Ch. 252, Stats. 1963. Effective September 20, 1963.
22352. (a) The prima facie limits are as follows and shall be applicable unless changed as authorized in this code and, if so changed, only when signs have been erected giving notice thereof:(1) Fifteen miles per hour:
(A) When traversing a railway grade crossing, if during the last 100 feet of the approach to the crossing the driver does not have a clear and unobstructed view of the crossing and of any traffic on the railway for a distance of 400 feet in both directions along the railway. This subdivision does not apply in the case of any railway grade crossing where a human flagman is on duty or a clearly visible electrical or mechanical railway crossing signal device is installed but does not then indicate the immediate approach of a railway train or car.
(B) When traversing any intersection of highways if during the last 100 feet of the driver's approach to the intersection the driver does not have a clear and unobstructed view of the intersection and of any traffic upon all of the highways entering the intersection for a distance of 100 feet along all those highways, except at an intersection protected by stop signs or yield right-of-way signs or controlled by official traffic control signals.
(C) On any alley.
(2) Twenty-five miles per hour:
(A) On any highway other than a state highway, in any business or residence district unless a different speed is determined by local authority under procedures set forth in this code.
(B) When approaching or passing a school building or the grounds thereof, contiguous to a highway and posted with a standard "SCHOOL" warning sign, while children are going to or leaving the school either during school hours or during the noon recess period. The prima facie limit shall also apply when approaching or passing any school grounds which are not separated from the highway by a fence, gate, or other physical barrier while the grounds are in use by children and the highway is posted with a standard "SCHOOL" warning sign. For purposes of this subparagraph, standard "SCHOOL" warning signs may be placed at any distance up to 500 feet away from school grounds.
(C) When passing a senior center or other facility primarily used by senior citizens, contiguous to a street other than a state highway and posted with a standard "SENIOR" warning sign. A local authority is not required to erect any sign pursuant to this paragraph until donations from private sources covering those costs are received and the local agency makes a determination that the proposed signing should be implemented. A local authority may, however, utilize any other funds available to it to pay for the erection of those signs.
22351. (a) The speed of any vehicle upon a highway not in excess of the limits specified in Section 22352 or established as authorized in this code is lawful unless clearly proved to be in violation of the basic speed law.
(b) The speed of any vehicle upon a highway in excess of the prima facie speed limits in Section 22352 or established as authorized in this code is prima facie unlawful unless the defendant establishes by competent evidence that the speed in excess of said limits did not constitute a violation of the basic speed law at the time, place and under the conditions then existing.
What is the charge listed on your citation? If you choose to fight this, I'll work with you, so long as you promise you didn't try to race with, or otherwise endanger any San Jose PD bears or their families while you were doing what you were doing. (I know some of them )
First you need to plead NG at your arraignment. Then you need to request the engineering and traffic study for that section of roadway on which you were charged, if it is NOT a local road or street. In the study it will state the safe for conditions speed along the roadway. Depending on that speed, you may have a defense. Otherwise, there are other defenses. You need to do a site analysis of that area including photos of the road and the signs and measuring distances from where you first entered the road and where you were cited, while noting conditions along the road and at the time of day such as traffic on the road, condition of the road, etc. Note everything, including where you first spotted the bears and where they first gave chase. Leave nothing out. If you want to win, attitude as you are doing this is paramount.
As for "exhibition of speed", I can find nothing in the vehicle code with such a designation as prohibited. That doesn't mean it isn't there, just that I didn't find it this afternoon. I have heard of this for years. I need either a specific statute or a clarification with reference to a statute. Do your homework on this one please.
PM me, or stop by my office in Sunnyvale.
As for "probable cause", I doubt it. For what were they searching when they ordered you out of the car? Did they inform you? S.O.P. says you stay IN the car with your hands in plain sight at all times. But they haven't charged you with anything as a result of the seemingly illegal search, so why deal with it?
Maybe they were hungry and looking for some donuts.
Now to the law:
Basic Speed Law
22350. No person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent having due regard for weather, visibility, the traffic on, and the surface and width of, the highway, and in no event at a speed which endangers the safety of persons or property.
Amended Ch. 252, Stats. 1963. Effective September 20, 1963.
22352. (a) The prima facie limits are as follows and shall be applicable unless changed as authorized in this code and, if so changed, only when signs have been erected giving notice thereof:(1) Fifteen miles per hour:
(A) When traversing a railway grade crossing, if during the last 100 feet of the approach to the crossing the driver does not have a clear and unobstructed view of the crossing and of any traffic on the railway for a distance of 400 feet in both directions along the railway. This subdivision does not apply in the case of any railway grade crossing where a human flagman is on duty or a clearly visible electrical or mechanical railway crossing signal device is installed but does not then indicate the immediate approach of a railway train or car.
(B) When traversing any intersection of highways if during the last 100 feet of the driver's approach to the intersection the driver does not have a clear and unobstructed view of the intersection and of any traffic upon all of the highways entering the intersection for a distance of 100 feet along all those highways, except at an intersection protected by stop signs or yield right-of-way signs or controlled by official traffic control signals.
(C) On any alley.
(2) Twenty-five miles per hour:
(A) On any highway other than a state highway, in any business or residence district unless a different speed is determined by local authority under procedures set forth in this code.
(B) When approaching or passing a school building or the grounds thereof, contiguous to a highway and posted with a standard "SCHOOL" warning sign, while children are going to or leaving the school either during school hours or during the noon recess period. The prima facie limit shall also apply when approaching or passing any school grounds which are not separated from the highway by a fence, gate, or other physical barrier while the grounds are in use by children and the highway is posted with a standard "SCHOOL" warning sign. For purposes of this subparagraph, standard "SCHOOL" warning signs may be placed at any distance up to 500 feet away from school grounds.
(C) When passing a senior center or other facility primarily used by senior citizens, contiguous to a street other than a state highway and posted with a standard "SENIOR" warning sign. A local authority is not required to erect any sign pursuant to this paragraph until donations from private sources covering those costs are received and the local agency makes a determination that the proposed signing should be implemented. A local authority may, however, utilize any other funds available to it to pay for the erection of those signs.
22351. (a) The speed of any vehicle upon a highway not in excess of the limits specified in Section 22352 or established as authorized in this code is lawful unless clearly proved to be in violation of the basic speed law.
(b) The speed of any vehicle upon a highway in excess of the prima facie speed limits in Section 22352 or established as authorized in this code is prima facie unlawful unless the defendant establishes by competent evidence that the speed in excess of said limits did not constitute a violation of the basic speed law at the time, place and under the conditions then existing.
What is the charge listed on your citation? If you choose to fight this, I'll work with you, so long as you promise you didn't try to race with, or otherwise endanger any San Jose PD bears or their families while you were doing what you were doing. (I know some of them )
First you need to plead NG at your arraignment. Then you need to request the engineering and traffic study for that section of roadway on which you were charged, if it is NOT a local road or street. In the study it will state the safe for conditions speed along the roadway. Depending on that speed, you may have a defense. Otherwise, there are other defenses. You need to do a site analysis of that area including photos of the road and the signs and measuring distances from where you first entered the road and where you were cited, while noting conditions along the road and at the time of day such as traffic on the road, condition of the road, etc. Note everything, including where you first spotted the bears and where they first gave chase. Leave nothing out. If you want to win, attitude as you are doing this is paramount.
As for "exhibition of speed", I can find nothing in the vehicle code with such a designation as prohibited. That doesn't mean it isn't there, just that I didn't find it this afternoon. I have heard of this for years. I need either a specific statute or a clarification with reference to a statute. Do your homework on this one please.
PM me, or stop by my office in Sunnyvale.
02-03-2008, 05:15 PM
#7
Under the Lift
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Exhibition of speed...California Vehicle Code§ 23109. I think this requires a contest between 2 vehicles or against a timer. Sounds like they twisted the application of this code.
This was the most common citation given to us kids when we were "dragging the Main" (ala American Grafitti) on Friday nights in the mid 60s.
If you squealed the tires, they could have cited you for a municipal code - excessive acceleration.
This was the most common citation given to us kids when we were "dragging the Main" (ala American Grafitti) on Friday nights in the mid 60s.
If you squealed the tires, they could have cited you for a municipal code - excessive acceleration.
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02-03-2008, 05:15 PM
#8
Race Director
Ron
But he was cited for
CVC 23109(C) Exhibition of speed on a highway, engage in, aid or abet a misdemeanor 2 point violation, not speeding... CVC 23109.2 (a-d) allows the vehicle to be towed and impounded for up to 30 days when the driver is arrested for any of the 23109 sections or reckless driving 23103....
So all the officer has to say is "I saw the suspect breaking traction for approximately xx feet, which caused a cloud of white smoke from his rear tires."....end of story you loose....they might even have video?? ( I had one a while back where the suspect was caught on video surveillence of our parking lots...then I photographed the skid marks and measured them too.....I told the suspect this, he didn't take me to court..:>) no engineering survey required....
It sounds like they are a special street racing enforcement team....which explains them being in an industrial area on the weekend....
The search is another story...BUT you would loose that one too....I guarantee you they intended on impounding the car, which allows them to to a "inventory" search of the vehicle to document its contents prior to the tow.....thats what they will say..& it will hold up, no question......I've never ever lost that one!!
You are in a tight spot......its a bummer the judge most likely is a *****....
But he was cited for
CVC 23109(C) Exhibition of speed on a highway, engage in, aid or abet a misdemeanor 2 point violation, not speeding... CVC 23109.2 (a-d) allows the vehicle to be towed and impounded for up to 30 days when the driver is arrested for any of the 23109 sections or reckless driving 23103....
So all the officer has to say is "I saw the suspect breaking traction for approximately xx feet, which caused a cloud of white smoke from his rear tires."....end of story you loose....they might even have video?? ( I had one a while back where the suspect was caught on video surveillence of our parking lots...then I photographed the skid marks and measured them too.....I told the suspect this, he didn't take me to court..:>) no engineering survey required....
It sounds like they are a special street racing enforcement team....which explains them being in an industrial area on the weekend....
The search is another story...BUT you would loose that one too....I guarantee you they intended on impounding the car, which allows them to to a "inventory" search of the vehicle to document its contents prior to the tow.....thats what they will say..& it will hold up, no question......I've never ever lost that one!!
You are in a tight spot......its a bummer the judge most likely is a *****....
02-03-2008, 05:29 PM
#9
928 Barrister
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Thank you for the code section.
What a shock! I disagree. The search is not in question since he drove the car home and nothing resulted from it. I always heard of the "smoke the rear tires" and you are busted, but I see NO WHERE in the law that prohibits such an act. I always see rear tires smoking and breaking traction both by civilians and police. All the time. Especially when the pavement is wet or gravelly. I also don't see anywhere in this case a description of another vehicle racing against this person, or a clock or timer anywhere around the site or along the road. I do see a lot of subjective judgement floating around.
The judge is NOT a judge, but is a traffic commissioner, and he is a .....well, not the most welcome associate.
The offer still stands, Travis.
What a shock! I disagree. The search is not in question since he drove the car home and nothing resulted from it. I always heard of the "smoke the rear tires" and you are busted, but I see NO WHERE in the law that prohibits such an act. I always see rear tires smoking and breaking traction both by civilians and police. All the time. Especially when the pavement is wet or gravelly. I also don't see anywhere in this case a description of another vehicle racing against this person, or a clock or timer anywhere around the site or along the road. I do see a lot of subjective judgement floating around.
The judge is NOT a judge, but is a traffic commissioner, and he is a .....well, not the most welcome associate.
The offer still stands, Travis.
02-03-2008, 07:06 PM
#12
928 Collector
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I suppose that depends on whether you think the amount of traction you have left allows you enough traction to not be a danger to other road users.If you have hardly enough traction to pull your car away fronm a stop when a Buick Le Sabre can do it, I'm thinking that would bea really bad defense.
02-03-2008, 07:17 PM
#13
928 Barrister
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[QUOTE=IcemanG17;5062425]Ron
But he was cited for
CVC 23109(C) Exhibition of speed on a highway, engage in, aid or abet a misdemeanor 2 point violation, not speeding... CVC 23109.2 (a-d) allows the vehicle to be towed and impounded for up to 30 days when the driver is arrested for any of the 23109 sections or reckless driving 23103....
My source states:
CVC 23109 (h) If a person is convicted of a violation of subdivision (a) and the vehicle used in the violation is registered to that person, the vehicle may be impounded at the registered owner’s expense for not less than one day nor more than 30 days.
So far in this saga, no one I know has been convicted of anything at all. Perhaps I missed something.......???
But he was cited for
CVC 23109(C) Exhibition of speed on a highway, engage in, aid or abet a misdemeanor 2 point violation, not speeding... CVC 23109.2 (a-d) allows the vehicle to be towed and impounded for up to 30 days when the driver is arrested for any of the 23109 sections or reckless driving 23103....
My source states:
CVC 23109 (h) If a person is convicted of a violation of subdivision (a) and the vehicle used in the violation is registered to that person, the vehicle may be impounded at the registered owner’s expense for not less than one day nor more than 30 days.
So far in this saga, no one I know has been convicted of anything at all. Perhaps I missed something.......???
02-04-2008, 02:15 AM
#14
Under the Lift
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Ron
But he was cited for
CVC 23109(C) Exhibition of speed on a highway, engage in, aid or abet a misdemeanor 2 point violation, not speeding... CVC 23109.2 (a-d) allows the vehicle to be towed and impounded for up to 30 days when the driver is arrested for any of the 23109 sections or reckless driving 23103....
So all the officer has to say is "I saw the suspect breaking traction for approximately xx feet, which caused a cloud of white smoke from his rear tires."....end of story you loose....
It sounds like they are a special street racing enforcement team....which explains them being in an industrial area on the weekend....
But he was cited for
CVC 23109(C) Exhibition of speed on a highway, engage in, aid or abet a misdemeanor 2 point violation, not speeding... CVC 23109.2 (a-d) allows the vehicle to be towed and impounded for up to 30 days when the driver is arrested for any of the 23109 sections or reckless driving 23103....
So all the officer has to say is "I saw the suspect breaking traction for approximately xx feet, which caused a cloud of white smoke from his rear tires."....end of story you loose....
It sounds like they are a special street racing enforcement team....which explains them being in an industrial area on the weekend....
Excessive acceleration is part of municipal code in cities around the Bay Area, not part of the state vehicle code.
Last edited by Bill Ball; 02-05-2008 at 02:38 AM.
02-04-2008, 02:24 AM
#15
928 Barrister
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Here is the statute:
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 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.
Further on it states:
23109.2. (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) (A) A motor vehicle speed contest, as described in subdivision
(a) of Section 23109.
We need a definition of "exhibition of speed" as distinct from "a motor vehicle speed contest"; I have not been able to find such a definition, though one appears to be distinct from the other, and the test for motor vehicle speed contest is clear, as Bill Ball has pointed out.
The authority for impounding the vehicle of an accused person is granted in the above section, though it is strange that it is allowed when that person has not yet been convicted of any crime. Police officers are not judges, juries or executioners. Here is the law for such circumstances:
22651. A peace officer, as defined in Chapter 4.5 (commencing with
Section 830) of Title 3 of Part 2 of the Penal Code, or a regularly
employed and salaried employee, who is engaged in directing traffic
or enforcing parking laws and regulations, of a city, county, or
jurisdiction of a state agency in which a vehicle is located, may
remove a vehicle located within the territorial limits in which the
officer or employee may act, under the following circumstances:
h) (1) When an officer arrests a person driving or in control of
a vehicle for an alleged offense and the officer is, by this code or
other law, required or permitted to take, and does take, the person
into custody.
Last edited by Ron_H; 02-04-2008 at 04:48 AM.