| 1 | A bill to be entitled |
| 2 | An act relating to street racing; creating the "Luis |
| 3 | Rivera Ortega Street Racing Act"; amending s. 316.191, |
| 4 | F.S.; revising provisions prohibiting certain speed |
| 5 | competitions and exhibitions; revising the definition of |
| 6 | the terms "conviction," "drag race," and "race"; defining |
| 7 | the terms "exhibition of acceleration," "exhibition of |
| 8 | speed," and "spectator"; prohibiting driving in any race, |
| 9 | drag race, exhibition of speed, or exhibition of |
| 10 | acceleration; prohibiting certain acts in association with |
| 11 | a race, drag race, exhibition of speed, or exhibition of |
| 12 | acceleration; prohibiting being a spectator at any such |
| 13 | race, drag race, or exhibition; providing for a rebuttable |
| 14 | presumption that a person is a spectator; providing |
| 15 | criminal and noncriminal penalties; providing for |
| 16 | revocation of the driver license upon conviction; |
| 17 | providing for disposition of citation for being a |
| 18 | spectator; providing penalties for a second or subsequent |
| 19 | offense; providing that a violation that causes or |
| 20 | contributes to causing serious bodily injury to another is |
| 21 | a felony of the third degree; providing that a violation |
| 22 | that causes or contributes to causing the death of any |
| 23 | human being or unborn quick child is the crime of racing |
| 24 | manslaughter; providing penalties; providing for a |
| 25 | determination of the definition of the term "unborn quick |
| 26 | child"; requiring that the driving record of a person |
| 27 | charged be provided to the court; providing criteria for |
| 28 | arrest; providing procedures for charging the owner of a |
| 29 | motor vehicle as a spectator if the owner's vehicle is |
| 30 | parked or operated in near proximity to any such race, |
| 31 | drag race, or exhibition; providing for citations, |
| 32 | disposition procedures, and enforcement; providing |
| 33 | procedures for impoundment or immobilization of a motor |
| 34 | vehicle under a court order; providing for release from |
| 35 | impoundment under specified exceptions; requiring costs |
| 36 | and fees of impoundment to be paid by the owner or lessee |
| 37 | of the motor vehicle; providing procedures for an |
| 38 | arresting officer to immediately impound a motor vehicle |
| 39 | used in a violation; providing for the period of |
| 40 | impoundment; removing a requirement for impoundment that |
| 41 | the person being arrested is the registered owner or |
| 42 | coowner of the motor vehicle; providing for seizure and |
| 43 | forfeiture of a motor vehicle used in a violation; |
| 44 | removing provisions for application only after a prior |
| 45 | conviction and only if the owner of the motor vehicle is |
| 46 | the person charged with the violation; providing for a |
| 47 | motor vehicle used in violation to be seized and forfeited |
| 48 | under the Florida Contraband Forfeiture Act regardless of |
| 49 | whether the violation is a misdemeanor or felony; |
| 50 | providing for satisfaction of the element of negligent |
| 51 | entrustment; providing for severability; providing an |
| 52 | effective date. |
| 53 |
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| 54 | WHEREAS, illegal street racing has lead to a significant |
| 55 | number of deaths as well as substantial bodily injuries to |
| 56 | drivers and pedestrians in the State of Florida, and |
| 57 | WHEREAS, the definitions of "drag race" and "race" require |
| 58 | further clarification to comport with the requirements of the |
| 59 | Florida and United States Constitutions, and |
| 60 | WHEREAS, increased penalties for first-time and repeat |
| 61 | offenders are necessary to preserve the safety and security of |
| 62 | our highways, roads, and pedestrians, and |
| 63 | WHEREAS, prevention of illegal street racing requires the |
| 64 | proscription of negligent entrustment of vehicles being utilized |
| 65 | in such racing, and |
| 66 | WHEREAS, illegal street racing events have increasingly |
| 67 | become spectator-driven and the assembly of persons at such |
| 68 | events for the purpose of viewing or participating therein |
| 69 | materially contributes to the number and severity of illegal |
| 70 | street racing, and |
| 71 | WHEREAS, to prevent further death and injury resulting from |
| 72 | illegal street racing, the Legislature of the State of Florida |
| 73 | finds a compelling state interest in proscribing and providing |
| 74 | for civil penalties for knowing spectators of such events due to |
| 75 | their critical role in promoting and assisting in the |
| 76 | conflagration of illegal street racing, NOW, THEREFORE, |
| 77 |
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| 78 | Be It Enacted by the Legislature of the State of Florida: |
| 79 |
|
| 80 | Section 1. Short title.--This act may be cited as the |
| 81 | "Luis Rivera Ortega Street Racing Act." |
| 82 | Section 2. Section 316.191, Florida Statutes, is amended |
| 83 | to read: |
| 84 | 316.191 Racing on highways.-- |
| 85 | (1) As used in this section, the term: |
| 86 | (a) "Conviction" means a determination of guilt that is |
| 87 | the result of a plea or trial, regardless of whether or not |
| 88 | adjudication is withheld. |
| 89 | (b) "Drag race" means the operation of two or more motor |
| 90 | vehicles in competition, arising from a challenge to demonstrate |
| 91 | superiority of a motor vehicle or driver and the acceptance or |
| 92 | competitive response to that challenge, either through a prior |
| 93 | arrangement or in immediate response, from a point side by side |
| 94 | at accelerating speeds in a competitive attempt to outdistance |
| 95 | each other, or the operation of one or more motor vehicles over |
| 96 | a common selected course, from the same point to the same point, |
| 97 | for the purpose of comparing the relative speeds or power of |
| 98 | acceleration of such motor vehicle or motor vehicles within a |
| 99 | certain distance or time limit. A drag race may be prearranged |
| 100 | or may occur through a competitive response to conduct on the |
| 101 | part of one or more drivers that, under the totality of the |
| 102 | circumstances, can reasonably be interpreted as a challenge to |
| 103 | participate in a drag race. |
| 104 | (c) "Exhibition of acceleration" means the use of a motor |
| 105 | vehicle in a demonstration to another person or persons, |
| 106 | including, but not limited to, any passenger of such motor |
| 107 | vehicle or the driver or passenger of another motor vehicle, of |
| 108 | the motor vehicle's ability to accelerate by a sudden increase |
| 109 | in speed causing a tire to lose firm traction with, or burn, |
| 110 | smoke, or squeal against, the road surface which results in the |
| 111 | vehicle's continuous acceleration to a final speed that exceeds |
| 112 | the posted or lawful speed limit. |
| 113 | (d) "Exhibition of speed" means the use of a motor vehicle |
| 114 | in a demonstration to another person or persons, including, but |
| 115 | not limited to, any passenger of such motor vehicle or the |
| 116 | driver or passenger of another motor vehicle, of the motor |
| 117 | vehicle's speed or handling capabilities at a speed of at least |
| 118 | double the posted or lawful speed limit or 100 miles per hour, |
| 119 | whichever is less. |
| 120 | (e)(c) "Race Racing" means the use of one or more motor |
| 121 | vehicles in competition, arising from a challenge to demonstrate |
| 122 | superiority of a motor vehicle or driver and the acceptance or |
| 123 | competitive response to that challenge, either through a prior |
| 124 | arrangement or in immediate response, in which the competitor |
| 125 | attempts an attempt to outgain or outdistance another motor |
| 126 | vehicle, to prevent another motor vehicle from passing, to |
| 127 | arrive at a given destination ahead of another motor vehicle or |
| 128 | motor vehicles, or to test the physical stamina or endurance of |
| 129 | drivers over long-distance driving routes. A race may be |
| 130 | prearranged or may occur through a competitive response to |
| 131 | conduct on the part of one or more drivers that, under the |
| 132 | totality of the circumstances, can reasonably be interpreted as |
| 133 | a challenge to race. |
| 134 | (f) "Spectator" means any person who is knowingly present |
| 135 | at and views an illegal race, drag race, or exhibition when such |
| 136 | presence is the result of an affirmative choice to attend or |
| 137 | participate in the race or exhibition. For purposes of |
| 138 | determining whether or not an individual is a spectator, finders |
| 139 | of fact shall consider the relationship between the racer and |
| 140 | the individual, evidence of gambling or betting on the outcome |
| 141 | of the race, and any other factor that would tend to show |
| 142 | knowing attendance or participation. |
| 143 | (2)(a) A person operating or in actual physical control of |
| 144 | a motor vehicle, including any motorcycle, on any street or |
| 145 | highway or publicly accessible parking lot may not: |
| 146 | 1. Drive any motor vehicle, including any motorcycle, in |
| 147 | any race;, |
| 148 | 2. Drive in any speed competition or contest, drag race; |
| 149 | or acceleration contest, test of physical endurance, or |
| 150 | 3. Drive in any exhibition of speed; or |
| 151 | 4. Drive in any exhibition of acceleration. or for the |
| 152 | purpose of making a speed record on any highway, roadway, or |
| 153 | parking lot; |
| 154 | (b) A person may not: |
| 155 | 1.2. In any manner knowingly participate in, coordinate, |
| 156 | facilitate, or collect moneys at any location for any such race, |
| 157 | drag race competition, contest, test, or exhibition prohibited |
| 158 | under paragraph (a); |
| 159 | 2.3. Knowingly ride as a passenger in any such race, drag |
| 160 | race competition, contest, test, or exhibition prohibited under |
| 161 | paragraph (a); or |
| 162 | 3.4. Knowingly Purposefully cause the movement of traffic |
| 163 | to slow or stop for any such race, drag race competition, |
| 164 | contest, test, or exhibition prohibited under paragraph (a). |
| 165 | (c) A person may not be a spectator at any such race, drag |
| 166 | race, or exhibition prohibited under paragraph (a). A vehicle |
| 167 | parked or operated in near proximity to any such race, drag |
| 168 | race, or exhibition under circumstances suggesting that the |
| 169 | driver or operator of such vehicle is a spectator shall create a |
| 170 | rebuttable presumption that the registered owner of the vehicle |
| 171 | is a spectator for all purposes of this section. |
| 172 | (3)(a) Any person who violates any provision of this |
| 173 | paragraph (2)(a) or paragraph (2)(b) commits a misdemeanor of |
| 174 | the second first degree, punishable as provided in s. 775.082 or |
| 175 | s. 775.083. Any person who violates any provision of this |
| 176 | paragraph (2)(a) or paragraph (2)(b) shall pay a fine of not |
| 177 | less than $250 $500 and not more than $500 $1,000, and the court |
| 178 | shall revoke the driver license of a person so convicted for 2 |
| 179 | years regardless of whether or not adjudication is withheld and |
| 180 | the department shall revoke the driver license of a person so |
| 181 | convicted for 1 year. A hearing may be requested pursuant to s. |
| 182 | 322.271. |
| 183 | (b) Any person who violates the provisions of paragraph |
| 184 | (2)(c) commits a noncriminal violation, punishable as provided |
| 185 | in s. 775.083, and must be cited to appear before a county judge |
| 186 | for disposition of the violation. Any person who violates the |
| 187 | provisions of paragraph (2)(c) shall pay a fine of not less than |
| 188 | $250 and not more than $500. |
| 189 | (c)(b) Any person who violates any provision of paragraph |
| 190 | (2)(a) or paragraph (2)(b) within 5 years after the date of a |
| 191 | prior violation that resulted in a conviction for a violation of |
| 192 | paragraph (2)(a) or paragraph (2)(b) this subsection commits a |
| 193 | misdemeanor of the first degree, punishable as provided in s. |
| 194 | 775.082 or s. 775.083, and shall pay a fine of not less than |
| 195 | $500 and not more than $1,000. In any second or subsequent |
| 196 | conviction, the court may not withhold adjudication of guilt and |
| 197 | shall revoke the driver license of that person for 5 years. The |
| 198 | department shall also revoke the driver license of that person |
| 199 | for 2 years. A hearing may be requested pursuant to s. 322.271. |
| 200 | (d) Any person who violates any provision of paragraph |
| 201 | (2)(a) or paragraph (2)(b) and by reason of such violation |
| 202 | causes or in any way contributes to causing damage to the |
| 203 | property or person of another commits a misdemeanor of the first |
| 204 | degree, punishable as provided in s. 775.082 or s. 775.083, and |
| 205 | shall pay a fine of not less than $500 and not more than $1,000, |
| 206 | and the court shall revoke the driver license of a person so |
| 207 | convicted for 2 years regardless of whether or not adjudication |
| 208 | is withheld. A hearing may be requested pursuant to s. 322.271. |
| 209 | (e) Any person who violates any provision of paragraph |
| 210 | (2)(a) or paragraph (2)(b) and by reason of such violation |
| 211 | causes or in any way contributes to causing serious bodily |
| 212 | injury to another, as defined in s. 316.1933, commits a felony |
| 213 | of the third degree, punishable as provided in s. 775.082, s. |
| 214 | 775.083, or s. 775.084, and shall pay a fine of not less than |
| 215 | $1,000. |
| 216 | (f) Any person who violates any provision of paragraph |
| 217 | (2)(a) or paragraph (2)(b) and by reason of such violation |
| 218 | causes or in any way contributes to causing the death of any |
| 219 | human being or unborn quick child commits the crime of racing |
| 220 | manslaughter. In any conviction under this paragraph, the court |
| 221 | may not withhold adjudication of guilt and shall permanently |
| 222 | revoke the driver license of a person so convicted. A hearing |
| 223 | may be requested pursuant to s. 322.271. A person so convicted |
| 224 | commits: |
| 225 | 1. A felony of the second degree, punishable as provided |
| 226 | in s. 775.082, s. 775.083, or s. 775.084, and shall pay a fine |
| 227 | of not less than $5,000; or |
| 228 | 2. A felony of the first degree, punishable as provided in |
| 229 | s. 775.082, s. 775.083, or s. 775.084, and shall pay a fine of |
| 230 | not less than $5,000, if: |
| 231 | a. At the time of the crash, the person knew, or should |
| 232 | have known, that the crash occurred; and |
| 233 | b. The person failed to give information and render aid as |
| 234 | required by s. 316.062. |
| 235 |
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| 236 | For purposes of this paragraph, the definition of the term |
| 237 | "unborn quick child" shall be determined in accordance with the |
| 238 | definition of viable fetus as set forth in s. 782.071. A person |
| 239 | who is convicted of racing manslaughter shall be sentenced to a |
| 240 | mandatory minimum term of imprisonment of 4 years. |
| 241 | (4)(c) In any case charging a violation of paragraph |
| 242 | (2)(a) or paragraph (2)(b), the court shall be provided a copy |
| 243 | of the driving record of the person charged and may obtain any |
| 244 | records from any other source to determine if one or more prior |
| 245 | convictions of the person for violation of paragraph (2)(a) or |
| 246 | paragraph (2)(b) have occurred within 5 years prior to the |
| 247 | charged offense; however, at trial, proof of such prior |
| 248 | conviction must be made by certified copy of any prior judgment |
| 249 | of conviction or judgment withholding adjudication of guilt. |
| 250 | (5)(a)(3) Whenever a law enforcement officer determines |
| 251 | that a person has committed a violation of paragraph (2)(a) or |
| 252 | paragraph (2)(b) was engaged in a drag race or race, as |
| 253 | described in subsection (1), the officer may immediately arrest |
| 254 | and take such person into custody, consistent with |
| 255 | constitutional requirements, regardless of whether or not the |
| 256 | offense was committed in the presence of the officer or whether |
| 257 | the officer's determination is based upon information provided |
| 258 | by anonymous tipsters, citizen informants, or any other source. |
| 259 | The court may enter an order of impoundment or immobilization as |
| 260 | a condition of incarceration or probation. Within 7 business |
| 261 | days after the date the court issues the order of impoundment or |
| 262 | immobilization, the clerk of the court must send notice by |
| 263 | certified mail, return receipt requested, to the registered |
| 264 | owner of the motor vehicle, if the registered owner is a person |
| 265 | other than the defendant, and to each person of record claiming |
| 266 | a lien against the motor vehicle. |
| 267 | (b) A law enforcement officer who determines that, in |
| 268 | accordance with the provisions of paragraph (2)(c), the driver |
| 269 | of a motor vehicle parked or operated in near proximity to any |
| 270 | such race, drag race, or exhibition is a spectator, the officer |
| 271 | may file a uniform traffic citation with the clerk of court of |
| 272 | the jurisdiction wherein the offense was committed charging the |
| 273 | registered owner of such vehicle with the proscribed offense. |
| 274 | The clerk shall issue a notice to appear to the registered |
| 275 | owner's last known address maintained by the department and |
| 276 | shall schedule a mandatory court appearance before a county |
| 277 | judge within 30 days after the filing of the citation. The |
| 278 | failure of such person to appear as required or to comply with |
| 279 | any fine imposed under this paragraph shall be subject to the |
| 280 | procedures of s. 318.15 governing failures to appear or to pay. |
| 281 | An officer may use any photographic or recording equipment in |
| 282 | determining the tag number or registered owner of any vehicle |
| 283 | pursuant to this paragraph. |
| 284 | (c)(a) Notwithstanding any provision of law to the |
| 285 | contrary, the impounding agency shall release a motor vehicle |
| 286 | under the conditions provided in s. 316.193(6)(e) and, (f), (g), |
| 287 | and (h), if the owner or agent presents a valid driver license |
| 288 | at the time of pickup of the motor vehicle. |
| 289 | (d)(b) All costs and fees for the impoundment or |
| 290 | immobilization, including the cost of notification, must be paid |
| 291 | by the owner of the motor vehicle or, if the motor vehicle is |
| 292 | leased or rented, by the person leasing or renting the motor |
| 293 | vehicle, unless the impoundment or immobilization order is |
| 294 | dismissed. All provisions of s. 713.78 shall apply. |
| 295 | (e)(c) Any motor vehicle used in violation of subsection |
| 296 | (2) may be impounded for a period of 30 10 business days if a |
| 297 | law enforcement officer has arrested and taken a person into |
| 298 | custody pursuant to this subsection and the person being |
| 299 | arrested is the registered owner or coowner of the motor |
| 300 | vehicle. If the arresting officer finds that the criteria of |
| 301 | this paragraph are met, the officer may immediately impound the |
| 302 | motor vehicle. The law enforcement officer shall notify the |
| 303 | Department of Highway Safety and Motor Vehicles of any |
| 304 | impoundment for violation of this subsection in accordance with |
| 305 | procedures established by the department. The provisions of |
| 306 | paragraphs (c)(a) and (d)(b) shall be applicable to such |
| 307 | impoundment. |
| 308 | (6)(4) Any motor vehicle used in violation of subsection |
| 309 | (2) by any person within 5 years after the date of a prior |
| 310 | conviction of that person for a violation under subsection (2) |
| 311 | may be seized and forfeited as provided by the Florida |
| 312 | Contraband Forfeiture Act. This subsection shall be applicable |
| 313 | to all owners of the motor vehicle who are either charged with a |
| 314 | criminal violation of subsection (2) or who negligently |
| 315 | entrusted their vehicle to the person charged with a criminal |
| 316 | violation of subsection (2), and the Florida Contraband |
| 317 | Forfeiture Act shall apply regardless of whether or not the |
| 318 | violation is a misdemeanor or felony. The element of negligent |
| 319 | entrustment is satisfied if the owner of a motor vehicle |
| 320 | entrusts his or her vehicle to a person knowing that such person |
| 321 | has previously been cited or charged with any violation of this |
| 322 | section, whether or not such charge or citation resulted in a |
| 323 | conviction only be applicable if the owner of the motor vehicle |
| 324 | is the person charged with violation of subsection (2). |
| 325 | (7)(5) This section does not apply to licensed or duly |
| 326 | authorized racetracks, drag strips, or other designated areas |
| 327 | set aside by proper authorities for such purposes. |
| 328 | (8) If any provision of this section is deemed |
| 329 | unconstitutional by any court, such unconstitutional provision |
| 330 | shall be deemed severable and such determination shall not |
| 331 | affect the enforceability of all remaining constitutional |
| 332 | provisions of this section. |
| 333 | Section 3. This act shall take effect October 1, 2008. |