The current landscape of the Constitutionality of this Florida Criminal statute is in a state of the unknown. On September 12, 2007, the Fourth District Court of Appeals ruled that the above mentioned statute was Unconstitutional for its vagueness. The Court held, “By defining the term “racing” in part as the use of one or more motor vehicles in an attempt to outgain or outdistance another motor vehicle, the legislature has rendered § 316.191, Fla. Stat. vague because the “outgain and outdistance” term could encompass passing, accelerating from a stop, and countless other legal maneuvers (and illegal and otherwise proscribed maneuvers, such as speeding) which drivers employ in their daily lives. Section 316.191, Fla. Stat., by failing to include an element of competition in its out-of-the-ordinary definition of “race,” encompasses an endless range of otherwise legal conduct (primarily based on the “outgain and outdistance” term), including passing and accelerating from a stop so as to make the scope of proscribed conduct vague and the statute facially unconstitutional. State v. Wells, 965 So.2d 834, 839 (Fla. 4th DCA 2007).
For a period of approximately six months, there were no conflicting cases on this statute. However, on March 31, 2008, The First District Court of Appeals ruled, “The Fourth District’s finding that the definition of “racing” should have included an element of competition is unpersuasive. When engaging in statutory interpretation, “related statutory provisions must be read together to achieve a consistent whole.” Woodham v. Blue Cross & Blue Shield, Inc., 829 So. 2d 891, 898 (Fla. 2002); see also Heart of Adoptions, Inc. v. J.A., 963 So. 2d 189, 199 (Fla. 2007). Here, section 316.191 (2) (a) (1) prohibits drivers from engaging in, among other things, “any race, speed competition or contest, [or] drag race or acceleration contest.” (emphasis added). Moreover, the legislature defined “drag race” as when two vehicles engage “in a competitive attempt to outdistance each other.” § 316.191 (1) (b), Fla. Stat. (emphasis added). Reading these provisions together, the statute cannot be applied unless vehicles are “competing” with each other. Therefore, we decline to follow Wells and find section 316.191 facially constitutional. Reaves v. State, 979 So.2d 1066 (Fla. 1st DCA 2008).
From the procedural history of the Constitutionality of this statute, it is my opinion that it is ripe for hearing in the Florida Supreme Court. Being that there is no opinion from the 5th DCA, our local jurisdiction, judges here can either follow the 1st or the 4th opinion. I recently had a racing case here in Orange County in which I filed a Motion to Dismiss based on the Unconstitutionality of the statute. In my motion I cited the opinion in Wells as my basis for dismissal. The Office of the State Attorney dismissed all charges against my client before the motion could be heard.
So, in my opinion, before the Florida Supreme Court takes a case addressing this statute, or before the 5th DCA takes a case, I would file Motions to Dismiss this charge in every case the State charges under this statute, and if the motion is heard, and the Court follows the 1st, the case could be ripe to take to the 5th DCA or up to the Florida Supreme Court. Please comment or call my office if you have any questions or concerns.
-Christopher Atcachunas, Esq.
