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Exhibition of Speed

Exhibition of Speed Plea Bargain in a California DUI Case

This concept is generally associated with DUI cases because a show or a speed contest is something that defense attorneys try to get for their clients instead of a DUI if their client has responsibility. Still, their DUI falls on the low-end of the DUI, the speed contest doesn't involve alcohol, and it is just more of a moving violation.

The law prohibiting the exhibition of speed is covered under California Vehicle Code 23109.

For example, if somebody were to screech their tires out of a parking lot, they could be charged with a speed contest by the police. 

It's just not easy to get this particular charge in place of a DUI because usually, the prosecutors want all the good things — from their perspective — that come with a DUI like an alcohol program, three years of probation, a fine. 

The fact that it's priorable.  Meaning that in the future, if you get a new DUI after, it can be counted as a second-time DUI.

Moving Violation Dismissed After Probation

Whereas a speed contest would not be priorable.  In other words, it would just pretty much be a moving violation on our record that you could later get dismissed if you complete whatever the probation the prosecutor and your defense attorney agree upon.

Exhibition of Speed Plea Bargain in California DUI Case

In Los Angeles County, where I've been practicing now for about twenty-five years and have done thousands of DUI's, your blood alcohol level will have to be pretty low to get a speed contest versus a full-fledged DUI.

In other words, it's going to have to be right around the .08.  In most .08s, the prosecutors in Los Angeles county are willing to give a speed contest unless there's some aggravating factor involved.

For example, suppose you're going over 100 miles an hour. In that case, even though you only blew a .08, you're not likely to get a speed contest because you were way too dangerous under the circumstances, even if your blood alcohol level was close to the legal limit.

Low Blood Alcohol Level

The lower your blood alcohol level, the more flexibility and the more maneuvering you give your attorney to deal with your DUI case. 

In some other jurisdictions, for example, Orange County and Ventura County, even if you have a .08, they will not move off the first-time DUI.

In my opinion, this is highly unfair because I don't think somebody who blows a .08 should be treated the same as somebody who blows a .16, for example. Still, Ventura doesn't really care about that, and they would assume you fight the case and go against them, and the same with Orange county, then lower the charge down.

Another area in Los Angeles when it comes to DUI's where I see the prosecutors lowering a speed contest or exhibition of speed from a DUI charge is when there's a problem with their case.

Not Observed Driving Vehicle

For example, if the police come upon somebody who's not driving their vehicle and are parked, that from the beginning starts to become a problem because to be able to measure somebody's blood and then extrapolate back for purposes of the DUI, the expert is going to need to know when the person was driving.

You can't just bring a breath or blood result into the expert and say, okay, what is the blood result?  And then, okay, fine, they're over the .08, but when was that blood or breath sample taken?  If it was taken at 5:00 p.m., who cares that their blood alcohol level at 5:00 p.m. was a .08 or greater.

We want to know their blood alcohol level at the time of driving.  So, you have to establish driving if you're law enforcement or the prosecutors or you don't have a case.  So, the murkier that driving issue is, the more likely you are to get a charge like a speed contest even though you're over the legal limit at the time they take your blood or breath.

Those are probably the two most significant things that the prosecutors are looking at: giving a speed contest.  Is there any problem with their case; and two, is the blood alcohol level close to the legal limit?

The reason that the close to the legal limit makes them move a lot of times — especially on the first offense with no prior criminal record and no bad driving record — is because the breath machine that they use to measure the blood alcohol level for purposes of a DUI is not 100% accurate.

Even their expert will testify that there's an error rate of .02 either way.  So, if you blew a .08, you can make the argument that you were only a .06.  The law says you have to be a .08.  The case should be dismissed.

Negotiation with DUI Prosecutor

The prosecutors will likely challenge that argument back by saying that if you have any alcohol in your system under Vehicle Code Section 23152(a). You couldn't safely operate a motor vehicle; we could get you for a DUI that way, even if we can't show that your blood alcohol level was a .08 or greater.

And, of course, to bolster that argument, they're going to use how well you did on the field sobriety tests that law enforcement gives you when they take you out of the car following a pull-over. 

They're also going to look at how you were walking, how you were talking, how you were driving. 

These are all things the police know to put in the report to help the prosecutor later on if the case goes to trial.

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