Florida Racing Accusations: The Illogical Premises The Accused Will Face
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As the accused person you have a RIGHT to know of what you are accused. There are at least six different acts that the state can accuse a person of committing that are criminal within the Racing on Highway statute. The state will typically try to expand the accusatory instrument to include all of these when a case is heading towards trial despite the fact that YOU have a right to know with what they are being charged. What does this mean to you? You will have to fend off all accusations as the state characterizes your driving behavior to fit every possible criminal act.
This is absolutely wrong. Everyone has a right to know what act they have been accused of committing and YOU deserve the enforcement of that right. However, the simple truth is if you try to fight this with an inexperienced attorney or on your own the prosecutor will have a huge advantage over you and the truth.
How the State will expand their "theories" of guilt against the accused.
A person accused of violating section 316.191 of the Florida Statutes (Racing On Highway) is first officially charged by Uniform Traffic Citation [UTC]. UTCs are issued by the police. Since this charge is not one of the "check-boxed" infractions listed on the older handwritten UTCs and the new computerized versions don't have check-boxes, the police usually write either "Race" or "Drag Race" within the description.
A UTC is an official charging document. If the police describe the offense as "Race" or "Drag Race" it can be argued that it limits the criminal acts that the state can pursue at trial. However, the state can amend a UTC or file an information and expand the acts to include all possibilities under the statute. Unfortunately, because the statute's prohibitive paragraph contains all of these acts, judge's are reluctant to require the state to narrow down what they are trying to prove.
The problem with accusing a person of a criminal act that can be committed in a multitude of ways.
When a person faces prosecution for committing a criminal act the due process requirements of both the United States Constitution and the Florida Constitution require that the person be informed of the criminal act committed. The "Racing on Highway" statute, however, is very poorly written. There are a multitude of ways to violate the statute all under one paragraph. The legislature decided that everything should be put into this single paragraph:
A person may not drive any motor vehicle, including any motorcycle, in any race, speed competition or contest, drag race or acceleration contest, test of physical endurance, or exhibition of speed or acceleration or for the purpose of making a speed record on any highway, roadway, or parking lot.
That prohibition paragraph lists five acts within the commas that are criminal. Within the commas, however, are multiple acts that if added up grammatically equates to seven acts. That is not the end of the counting. The statute goes on to include definitions for "racing" and "drag racing." The definition for "racing" has four acts that can be considered a violation of the statute. A person accused of violating s.316.191, F.S., must fend off a prosecutor that will accuse him of violating each and every possible act (total 11) within the statute.
The Discrepancies between the statutory definitions and the jury instruction's definition.
The "what am I accused of" question facing the Defendant is that the statute itself and the jury instructions are different. There are a multitude of ways in which you can violate s.316.191, F.S. We have listed the 11 ways the statute prohibits. Then we have the jury instructions. People are not noticed of the jury instructions but this is what a jury will rely on to determine guilt or innocence (unless challenged). The statute, which the people are noticed, defines "race" as:
“Race” means the use of one or more motor vehicles in competition, arising from a challenge to demonstrate superiority of a motor vehicle or driver and the acceptance or competitive response to that challenge, either through a prior arrangement or in immediate response, in which the competitor attempts to outgain or outdistance another motor vehicle, to prevent another motor vehicle from passing, to arrive at a given destination ahead of another motor vehicle or motor vehicles, or to test the physical stamina or endurance of drivers over long-distance driving routes. A race may be prearranged or may occur through a competitive response to conduct on the part of one or more drivers which, under the totality of the circumstances, can reasonably be interpreted as a challenge to race.
- Emphasis added...
However, a jury is read a different definition:
Race means a competition involving the use of one or more motor vehicles in an attempt to outgain or outdistance another motor vehicle, to prevent another motor vehicle from passing, to arrive at a given destination ahead of another motor vehicle or motor vehicles, or to test the physical stamina or endurance of drivers over long distance driving routes.
Note that the bold portions found in the statutes are missing. Isn't that language important? Damn right it is and we make sure the jury hears all of it.
The definition for "drag race" is also different. The statute defines drag race as:
Drag race means the operation of two or more motor vehicles from a point side by side at accelerating speeds in a competitive attempt to outdistance each other, or the operation of one or more motor vehicles over a common selected course, from the same point to the same point, for the purpose of comparing the relative speeds or power of acceleration of such motor vehicle or motor vehicles within a certain distance or time limit.
The jury is given this definition:
Drag race means the operation of two or more motor vehicles from a point side by side at accelerating speeds in a competitive attempt to outdistance each other, or the operation of one or more motor vehicles to the same point, for the purpose of comparing the relative speeds or power of acceleration of such motor vehicle or motor vehicles within a certain distance or time limit.
Another very important part of the statute is left out of the jury instruction - I will make sure that the jury instruction is corrected or make sure the jury knows exactly what the statute prohibits.
The definition of drag race also encompasses "acceleration contest" yet it is so poorly written that it is hard to discern the difference even for judges. I believe it should be separated into two definitions:
Drag race:
Drag race means the operation of two or more motor vehicles from a point side by side at accelerating speeds in a competitive attempt to outdistance each other for the purpose of comparing the relative speeds or power of acceleration of such motor vehicles within a certain distance.
Acceleration contest:
Acceleration contest means the operation of one or more motor vehicles over a common selected course, from the same point to the same point, for the purpose of comparing the relative speeds or power of acceleration of such motor vehicle or motor vehicles within a certain time limit.
This way the average person can get an idea of what he or she is not suppose to do.
Concerns facing the driver accused of Street Racing
The initial concern is that being found guilty of street racing results in an automatic one year suspension of your driving privileges. This means you cannot drive at all unless the DMV allows you to receive a restricted license. Street racing is also a first degree misdemeanor punishable for up to a year in jail and a fine of $1,000.00 (Minimum $500 per statute).
There are many defenses that can be raised for someone charged with street racing. By entering a plea without an criminal defense attorney, you waive all defenses that could have possibly changed the outcome of your case. Remember that the burden of proof is on the prosecutor to prove you were racing and not just speeding or starting fast - both of which are only civil citations.
A conviction for Racing puts you at jeopardy of losing your car if you are arrested again for Racing within 5 years. This means if you are found guilty once and are just stopped and accused of racing a second time within 5 years the State of Florida will "seize" you car (take it from you). Any amount still owed on the car will still be obligated to you to pay.
Never admit to racing! Most people arrested for Racing were not, by definition, street racing! By admitting to racing you may be admitting to something you did not do. Your admission, however, can be used against you in court.
Remember - passing, speeding, starting fast, squealing tires, or arriving first at your destination are not criminal offenses by themselves. However, the statute is so poorly written that those things can be the basis for law enforcement making an arrest. Don't admit to violating this statute (or any statute) that you do not fully understand.
Despite the fact that we already have criminal statutes to punish people for dangerous driving acts such as "reckless driving," "vehicular manslaughter," and "vehicular homicide," we now have a new statute open to broad interpretation. This one is dangerously and poorly defined. A poorly written criminal statute is a double-edged sword. It allows law enforcement to arrest people who have not committed the intended prohibited act and it provides many legal defenses.
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