Racing jury instructions.

Just read the latest News and felt compelled to write this letter. The new "Racing on the Highway" jury instruction is as bad as the statute ([section]316.191) that recently was struck down as unconstitutional (vague) by the Fourth District Court of Appeal (see State v. Wells, 32 FLW D2159 (4th DCA September 12, 2007). I am flabbergasted that this instruction passed through a committee of lawyers.

Similar to the vague statute, the jury instructions criminalize drivers for attempting to outgain another vehicle, for preventing another vehicle from passing, for arriving at a given destination ahead of another driver, or for testing the physical endurance of a driver over long distance driving routes. The unconstitutional statute has caused law-abiding citizens to be charged, arrested, and prosecuted for doing exactly those prohibitions. Unfortunately, "those prohibitions" are done by most drivers every day (in other words, "us"). I often attempt to outgain other vehicles--especially if they are driving slower than I am. If I'm breaking the law, it is a civil citation known commonly as "speeding." If I prevent another vehicle from passing, I again break the law under [section]316.083--yet another civil citation. If I arrive at a given destination ahead of another driver then I just got lucky. As far as long distance endurance records, well, considering how this state has already crippled commercial drivers concerning infractions, it is no surprise that it would try to criminalize their very job description.

By writing a standardized jury instruction just as poorly written as the statute, the Supreme Court has emboldened (but for the Wells case) law enforcement officers to make stops where, had this law not existed, a civil citation might have been issued rather than a criminal arrest. This jury instruction also would have been a stamp of approval for the state attorneys to continue the prosecution of law-abiding citizens. (I have represented a client charged with racing because his bald tire squealed as he turned a corner.)

There is no doubt that there are drivers who need to be stopped for their reckless driving behavior. We all see it every day on our roadways. Maybe the legislature needs to get together and develop a "reckless driving" prohibition--something like [section]316.192 (Reckless Driving, for any legislators reading this). Maybe a law like that would work.

A little food for thought before I end. If anyone does not believe that [section]316.191 was overbroad and led to capricious enforcement resulting in numerous frivolous arrests, then maybe the Department of Highway Safety and Motor Vehicles could shed some light and display the statistics of how often the racing infraction was issued before it was criminalized in 2002, as compared to how often it was issued after it became a misdemeanor.

Eric J. Dirga

Orlando