HB 1043

1
A bill to be entitled
2An act relating to street racing; creating the "Luis
3Rivera Ortega Street Racing Act"; amending s. 316.191,
4F.S.; revising provisions prohibiting certain speed
5competitions and exhibitions; revising the definition of
6the terms "conviction," "drag race," and "race"; defining
7the terms "exhibition of acceleration," "exhibition of
8speed," and "spectator"; prohibiting driving in any race,
9drag race, exhibition of speed, or exhibition of
10acceleration; prohibiting certain acts in association with
11a race, drag race, exhibition of speed, or exhibition of
12acceleration; prohibiting being a spectator at any such
13race, drag race, or exhibition; providing for a rebuttable
14presumption that a person is a spectator; providing
15criminal and noncriminal penalties; providing for
16revocation of the driver license upon conviction;
17providing for disposition of citation for being a
18spectator; providing penalties for a second or subsequent
19offense; providing that a violation that causes or
20contributes to causing serious bodily injury to another is
21a felony of the third degree; providing that a violation
22that causes or contributes to causing the death of any
23human being or unborn quick child is the crime of racing
24manslaughter; providing penalties; providing for a
25determination of the definition of the term "unborn quick
26child"; requiring that the driving record of a person
27charged be provided to the court; providing criteria for
28arrest; providing procedures for charging the owner of a
29motor vehicle as a spectator if the owner's vehicle is
30parked or operated in near proximity to any such race,
31drag race, or exhibition; providing for citations,
32disposition procedures, and enforcement; providing
33procedures for impoundment or immobilization of a motor
34vehicle under a court order; providing for release from
35impoundment under specified exceptions; requiring costs
36and fees of impoundment to be paid by the owner or lessee
37of the motor vehicle; providing procedures for an
38arresting officer to immediately impound a motor vehicle
39used in a violation; providing for the period of
40impoundment; removing a requirement for impoundment that
41the person being arrested is the registered owner or
42coowner of the motor vehicle; providing for seizure and
43forfeiture of a motor vehicle used in a violation;
44removing provisions for application only after a prior
45conviction and only if the owner of the motor vehicle is
46the person charged with the violation; providing for a
47motor vehicle used in violation to be seized and forfeited
48under the Florida Contraband Forfeiture Act regardless of
49whether the violation is a misdemeanor or felony;
50providing for satisfaction of the element of negligent
51entrustment; providing for severability; providing an
52effective date.
53
54     WHEREAS, illegal street racing has lead to a significant
55number of deaths as well as substantial bodily injuries to
56drivers and pedestrians in the State of Florida, and
57     WHEREAS, the definitions of "drag race" and "race" require
58further clarification to comport with the requirements of the
59Florida and United States Constitutions, and
60     WHEREAS, increased penalties for first-time and repeat
61offenders are necessary to preserve the safety and security of
62our highways, roads, and pedestrians, and
63     WHEREAS, prevention of illegal street racing requires the
64proscription of negligent entrustment of vehicles being utilized
65in such racing, and
66     WHEREAS, illegal street racing events have increasingly
67become spectator-driven and the assembly of persons at such
68events for the purpose of viewing or participating therein
69materially contributes to the number and severity of illegal
70street racing, and
71     WHEREAS, to prevent further death and injury resulting from
72illegal street racing, the Legislature of the State of Florida
73finds a compelling state interest in proscribing and providing
74for civil penalties for knowing spectators of such events due to
75their critical role in promoting and assisting in the
76conflagration of illegal street racing, NOW, THEREFORE,
77
78Be 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
83to 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
87the result of a plea or trial, regardless of whether or not
88adjudication is withheld.
89     (b)  "Drag race" means the operation of two or more motor
90vehicles in competition, arising from a challenge to demonstrate
91superiority of a motor vehicle or driver and the acceptance or
92competitive response to that challenge, either through a prior
93arrangement or in immediate response, from a point side by side
94at accelerating speeds in a competitive attempt to outdistance
95each other, or the operation of one or more motor vehicles over
96a common selected course, from the same point to the same point,
97for the purpose of comparing the relative speeds or power of
98acceleration of such motor vehicle or motor vehicles within a
99certain distance or time limit. A drag race may be prearranged
100or may occur through a competitive response to conduct on the
101part of one or more drivers that, under the totality of the
102circumstances, can reasonably be interpreted as a challenge to
103participate in a drag race.
104     (c)  "Exhibition of acceleration" means the use of a motor
105vehicle in a demonstration to another person or persons,
106including, but not limited to, any passenger of such motor
107vehicle or the driver or passenger of another motor vehicle, of
108the motor vehicle's ability to accelerate by a sudden increase
109in speed causing a tire to lose firm traction with, or burn,
110smoke, or squeal against, the road surface which results in the
111vehicle's continuous acceleration to a final speed that exceeds
112the posted or lawful speed limit.
113     (d)  "Exhibition of speed" means the use of a motor vehicle
114in a demonstration to another person or persons, including, but
115not limited to, any passenger of such motor vehicle or the
116driver or passenger of another motor vehicle, of the motor
117vehicle's speed or handling capabilities at a speed of at least
118double the posted or lawful speed limit or 100 miles per hour,
119whichever is less.
120     (e)(c)  "Race Racing" means the use of one or more motor
121vehicles in competition, arising from a challenge to demonstrate
122superiority of a motor vehicle or driver and the acceptance or
123competitive response to that challenge, either through a prior
124arrangement or in immediate response, in which the competitor
125attempts an attempt to outgain or outdistance another motor
126vehicle, to prevent another motor vehicle from passing, to
127arrive at a given destination ahead of another motor vehicle or
128motor vehicles, or to test the physical stamina or endurance of
129drivers over long-distance driving routes. A race may be
130prearranged or may occur through a competitive response to
131conduct on the part of one or more drivers that, under the
132totality of the circumstances, can reasonably be interpreted as
133a challenge to race.
134     (f)  "Spectator" means any person who is knowingly present
135at and views an illegal race, drag race, or exhibition when such
136presence is the result of an affirmative choice to attend or
137participate in the race or exhibition. For purposes of
138determining whether or not an individual is a spectator, finders
139of fact shall consider the relationship between the racer and
140the individual, evidence of gambling or betting on the outcome
141of the race, and any other factor that would tend to show
142knowing attendance or participation.
143     (2)(a)  A person operating or in actual physical control of
144a motor vehicle, including any motorcycle, on any street or
145highway or publicly accessible parking lot may not:
146     1.  Drive any motor vehicle, including any motorcycle, in
147any race;,
148     2.  Drive in any speed competition or contest, drag race;
149or 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
152purpose of making a speed record on any highway, roadway, or
153parking lot;
154     (b)  A person may not:
155     1.2.  In any manner knowingly participate in, coordinate,
156facilitate, or collect moneys at any location for any such race,
157drag race competition, contest, test, or exhibition prohibited
158under paragraph (a);
159     2.3.  Knowingly ride as a passenger in any such race, drag
160race competition, contest, test, or exhibition prohibited under
161paragraph (a); or
162     3.4.  Knowingly Purposefully cause the movement of traffic
163to slow or stop for any such race, drag race competition,
164contest, test, or exhibition prohibited under paragraph (a).
165     (c)  A person may not be a spectator at any such race, drag
166race, or exhibition prohibited under paragraph (a). A vehicle
167parked or operated in near proximity to any such race, drag
168race, or exhibition under circumstances suggesting that the
169driver or operator of such vehicle is a spectator shall create a
170rebuttable presumption that the registered owner of the vehicle
171is a spectator for all purposes of this section.
172     (3)(a)  Any person who violates any provision of this
173paragraph (2)(a) or paragraph (2)(b) commits a misdemeanor of
174the second first degree, punishable as provided in s. 775.082 or
175s. 775.083. Any person who violates any provision of this
176paragraph (2)(a) or paragraph (2)(b) shall pay a fine of not
177less than $250 $500 and not more than $500 $1,000, and the court
178shall revoke the driver license of a person so convicted for 2
179years regardless of whether or not adjudication is withheld and
180the department shall revoke the driver license of a person so
181convicted for 1 year. A hearing may be requested pursuant to s.
182322.271.
183     (b)  Any person who violates the provisions of paragraph
184(2)(c) commits a noncriminal violation, punishable as provided
185in s. 775.083, and must be cited to appear before a county judge
186for disposition of the violation. Any person who violates the
187provisions 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
191prior violation that resulted in a conviction for a violation of
192paragraph (2)(a) or paragraph (2)(b) this subsection commits a  
193misdemeanor of the first degree, punishable as provided in s.
194775.082 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
196conviction, the court may not withhold adjudication of guilt and
197shall revoke the driver license of that person for 5 years. The
198department shall also revoke the driver license of that person
199for 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
202causes or in any way contributes to causing damage to the
203property or person of another commits a misdemeanor of the first
204degree, punishable as provided in s. 775.082 or s. 775.083, and
205shall pay a fine of not less than $500 and not more than $1,000,
206and the court shall revoke the driver license of a person so
207convicted for 2 years regardless of whether or not adjudication
208is 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
211causes or in any way contributes to causing serious bodily
212injury to another, as defined in s. 316.1933, commits a felony
213of the third degree, punishable as provided in s. 775.082, s.
214775.083, 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
218causes or in any way contributes to causing the death of any
219human being or unborn quick child commits the crime of racing
220manslaughter. In any conviction under this paragraph, the court
221may not withhold adjudication of guilt and shall permanently
222revoke the driver license of a person so convicted. A hearing
223may be requested pursuant to s. 322.271. A person so convicted
224commits:
225     1.  A felony of the second degree, punishable as provided
226in s. 775.082, s. 775.083, or s. 775.084, and shall pay a fine
227of not less than $5,000; or
228     2.  A felony of the first degree, punishable as provided in
229s. 775.082, s. 775.083, or s. 775.084, and shall pay a fine of
230not less than $5,000, if:
231     a.  At the time of the crash, the person knew, or should
232have known, that the crash occurred; and
233     b.  The person failed to give information and render aid as
234required by s. 316.062.
235
236For purposes of this paragraph, the definition of the term
237"unborn quick child" shall be determined in accordance with the
238definition of viable fetus as set forth in s. 782.071. A person
239who is convicted of racing manslaughter shall be sentenced to a
240mandatory 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
243of the driving record of the person charged and may obtain any
244records from any other source to determine if one or more prior
245convictions of the person for violation of paragraph (2)(a) or
246paragraph (2)(b) have occurred within 5 years prior to the
247charged offense; however, at trial, proof of such prior
248conviction must be made by certified copy of any prior judgment
249of conviction or judgment withholding adjudication of guilt.
250     (5)(a)(3)  Whenever a law enforcement officer determines
251that a person has committed a violation of paragraph (2)(a) or
252paragraph (2)(b) was engaged in a drag race or race, as
253described in subsection (1), the officer may immediately arrest
254and take such person into custody, consistent with
255constitutional requirements, regardless of whether or not the
256offense was committed in the presence of the officer or whether
257the officer's determination is based upon information provided
258by anonymous tipsters, citizen informants, or any other source.
259The court may enter an order of impoundment or immobilization as
260a condition of incarceration or probation. Within 7 business
261days after the date the court issues the order of impoundment or
262immobilization, the clerk of the court must send notice by
263certified mail, return receipt requested, to the registered
264owner of the motor vehicle, if the registered owner is a person
265other than the defendant, and to each person of record claiming
266a lien against the motor vehicle.
267     (b)  A law enforcement officer who determines that, in
268accordance with the provisions of paragraph (2)(c), the driver
269of a motor vehicle parked or operated in near proximity to any
270such race, drag race, or exhibition is a spectator, the officer
271may file a uniform traffic citation with the clerk of court of
272the jurisdiction wherein the offense was committed charging the
273registered owner of such vehicle with the proscribed offense.
274The clerk shall issue a notice to appear to the registered
275owner's last known address maintained by the department and
276shall schedule a mandatory court appearance before a county
277judge within 30 days after the filing of the citation. The
278failure of such person to appear as required or to comply with
279any fine imposed under this paragraph shall be subject to the
280procedures of s. 318.15 governing failures to appear or to pay.
281An officer may use any photographic or recording equipment in
282determining the tag number or registered owner of any vehicle
283pursuant to this paragraph.
284     (c)(a)  Notwithstanding any provision of law to the
285contrary, the impounding agency shall release a motor vehicle
286under the conditions provided in s. 316.193(6)(e) and, (f), (g),
287and (h), if the owner or agent presents a valid driver license
288at the time of pickup of the motor vehicle.
289     (d)(b)  All costs and fees for the impoundment or
290immobilization, including the cost of notification, must be paid
291by the owner of the motor vehicle or, if the motor vehicle is
292leased or rented, by the person leasing or renting the motor
293vehicle, unless the impoundment or immobilization order is
294dismissed. 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
297law enforcement officer has arrested and taken a person into
298custody pursuant to this subsection and the person being
299arrested is the registered owner or coowner of the motor
300vehicle. If the arresting officer finds that the criteria of
301this paragraph are met, the officer may immediately impound the
302motor vehicle. The law enforcement officer shall notify the
303Department of Highway Safety and Motor Vehicles of any
304impoundment for violation of this subsection in accordance with
305procedures established by the department. The provisions of
306paragraphs (c)(a) and (d)(b) shall be applicable to such
307impoundment.
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
310conviction of that person for a violation under subsection (2)
311may be seized and forfeited as provided by the Florida
312Contraband Forfeiture Act. This subsection shall be applicable
313to all owners of the motor vehicle who are either charged with a
314criminal violation of subsection (2) or who negligently
315entrusted their vehicle to the person charged with a criminal
316violation of subsection (2), and the Florida Contraband
317Forfeiture Act shall apply regardless of whether or not the
318violation is a misdemeanor or felony. The element of negligent
319entrustment is satisfied if the owner of a motor vehicle
320entrusts his or her vehicle to a person knowing that such person
321has previously been cited or charged with any violation of this
322section, whether or not such charge or citation resulted in a
323conviction only be applicable if the owner of the motor vehicle
324is the person charged with violation of subsection (2).
325     (7)(5)  This section does not apply to licensed or duly
326authorized racetracks, drag strips, or other designated areas
327set aside by proper authorities for such purposes.
328     (8)  If any provision of this section is deemed
329unconstitutional by any court, such unconstitutional provision
330shall be deemed severable and such determination shall not
331affect the enforceability of all remaining constitutional
332provisions of this section.
333     Section 3.  This act shall take effect October 1, 2008.


CODING: Words stricken are deletions; words underlined are additions.