Exhibition of Speed Plea Bargain in a California DUI Case
This concept is generally associated with DUI cases because an exhibition or a speed contest is something that defense attorneys try to get for their clients instead of a DUI if their client has responsibility, but 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 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 successfully complete whatever the probation the prosecutor and your defense attorney agree upon.
In Los Angeles county where I've been practicing now for about twenty-five years and have done thousands of DUI's, in order to get a speed contest versus a full-fledged DUI, your blood alcohol level is going to have to be pretty low.
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 sort of aggravated factor involved.
For example, if you're going over 100 miles an hour, 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 in trying to deal with your DUI case. Some of the 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 extremely unfair because I don't think somebody who blows a .08 should be treated the same as somebody who blows a .16 for example, but Ventura doesn't really care about that and they would just assume you fight the case and go against them, and the same with Orange county, than them 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 is parked, that from the beginning starts to become a problem because in order 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 what their blood alcohol level was at the time of driving. So, you have to be able to establish driving if you're law enforcement or the prosecutors or you don't have a case. So, the more murky 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 biggest things that the prosecutors are looking at in giving a speed contest. One, 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 a 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 own 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 under Vehicle Code Section 23152(a), if you have any alcohol in your system and 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 try to bolster that argument, they're going to use the how well you did on the field sobriety tests that law enforcement give 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 try help the prosecutor later on if the case goes to trial.