Car drivers or motorcyclists who are found to have been involved in illegal racing no longer get off lightly: since 2017, illegal car racing has been considered a criminal offense and no longer a regulatory offense.
This entails considerable consequences – even if no one is harmed in the process. In addition, people often don’t consider the consequences of an illegal car race in the event of an accident for car insurance.
We explain what penalties may be incurred and what speeders still have to reckon with.
If you too are accused of taking part in an illegal car race, keep quiet and seek legal advice.
Because with this accusation it depends on the right defense by an experienced lawyer in this special field.
Contents of this page
1. Racing: a case from our law firm
One of our many federal defenses to charges of illegal street racing; here, a case without a serious outcome (accident resulting in injury or death):
Five motorcyclists allegedly engaged in an illegal street race in cologne on an inner-city long street known for speeding.
The police officers, who happened to be standing with their patrol car at an intersection in the course of the road, want to have observed a red light violation of a motorcyclist and, in the aftermath, an illegal race of a group of motorcyclists among which our client was located.
As defense counsel for one of the motorcyclists, we were able to get the case dismissed in court.
This succeeded u.A. Through a representation that the bike that ran the red light did not belong to the motorcycle group, a detailed questioning of the police witnesses and a presentation of the course of the road that made the court doubt the version of a road race by the police. The indications necessary for a race about which we could still report in the further are shaken by us.
The driver’s license had to be handed over during the trial. The seized motorcycle was also handed over.
In addition, the state had to pay for the costs of the proceedings, including the towing and accommodation costs of the motorcycle.
2. Illegal car racing: facts and figures
Since the new racing paragraph: § 315 d stgb came into force in 2017, more than 1800 investigation proceedings have been initiated in berlin alone (as of 2021). Charges have been filed in nearly 800 cases and more than 350 cases have been finalized. Berlin occupies a top position in the number of car races in relation to the number of inhabitants among the nine federal states that keep statistics on the number of proceedings.
In the most populous state of north rhine westphalia, 474 illegal car races were registered by the police in 2018, just one year after the law was changed in 2017. An increase of 40 % compared to 2017. In 2019, the number of cases rose further to 659.
In bavaria, the number of investigations into street racing increased from 311 cases in 2019 to 466 cases in 2020.
In the total of nine federal states that keep statistics on the number of proceedings for car racing, around 1900 cases were registered in 2019; 700 cases more than a year earlier.
This means that after the introduction of the racing paragraph, there were not – as intended – fewer criminal proceedings, but even more proceedings! In any case, the tightening of the law does not seem to have had any deterrent effect.
However, the rising number of criminal proceedings for car racing can also be explained by the increased investigative pressure of the authorities and a higher number of reports of previously concealed offenses. Whether there is actually an increase in the number of races can therefore not be clearly read from the figures.
To be determined from the statistics still:
Of the investigations into car racing, approximately one-third are races with two or more participants, one-third are solo races and one-third are so-called police escapes.
In most cases, the means of committing the crime are high-powered vehicles or motorcycles.
3. Street racing: the new law
the legally correct term for illegal car racing is "prohibited motor vehicle racing", regulated in the new section 315d of the stgb.
The new paragraph was created after the public and the tabloid media became increasingly aware of illegal car races in which uninvolved persons were killed or seriously injured.
The general public was particularly moved by serious accidents after car races in berlin and cologne, which resulted in rather lenient sentences. Punishment as a mere administrative offense was no longer seen as sufficient.
Until then, the penalty regulation only provided for a fine of 400 € and a one-month driving ban.
The initial impetus for the new tough law is likely to have been the "mother of all races": the Berlin kudamm speeding case, which we take a closer look at below.
The aim of the new penal code should be to take decisive action against the "speeding scene".
After broad discussion, the new paragraph was introduced in the Bundestag in June 2017, which means a strong increase in punishment.
In addition, in some large cities, special commissions for car racing (soko rennen) created at the police, which since then in civilian vehicles carry out focal point controls at hotspots for car racing.
In our experience, the soko rennen is currently reporting not only clear-cut cases, but also an increasing number of dubious borderline cases involving mere speeding.
Often these are then nevertheless rigorously classified by the public prosecutor’s office as illegal motor races and – still on the spot – driver’s licenses and cars or motorcycles are confiscated.
4. What is the penalty for illegal racing??
the law provides for severe penalties in the event of a prohibited motor vehicle race.
Participants and organizers are threatened:
- A prison sentence of up to two years
- A fine
If the offence endangers the life or limb of another person or objects of significant value, the penalty depends on whether the offence is committed intentionally or through negligence.
In the case of negligence, the following can be expected
- A prison sentence of up to three years
- A fine
specialist lawyer for traffic law thomas erven
"for first-time offenders, fines of between 60 and 90 daily rates and a driving license revocation of between 9 and 12 months are common."
"but it depends on the individual case: length of the route, speed, other traffic violations (for example, running red lights or overtaking on the right) and traffic density are important criteria for the penalty "
Whether driving caused by only one racing participant can also be attributed to the other racing participant is often problematic.
Whoever acts intentionally is threatened with
- A custodial sentence of up to five years
When people are killed or seriously injured by racing, the
- imprisonment from one year to ten years. (minimum penalty therefore one year imprisonment!). in less serious cases at least 6 months imprisonment
Here an enormous aggravation of punishment was carried out. Whereas in the past only a 5-year prison sentence was possible for killing a person in a car race and there was no proof of intent, today a prison sentence of up to 10 years is possible, even if there is no proof of intent to kill another road user.
5. What are the other consequences of a race?
Participants or organizers must not only prepare for a criminal conviction. In addition
- The driver’s license of the accused already before the trial be temporarily confiscated
- Have their driving license revoked
- According to § 69 a stgb a suspension for the issuance of a new driving license can be ordered. The suspension, which is often problematic for those who are dependent on a vehicle, lasts at least six months and up to five years. In extreme cases the suspension is for ever. The minimum term of imprisonment is one year if the offender has already been imprisoned in the three years preceding the offence. Following the amendment of the legal text of section 69 of the penal code, the perpetrator of an illegal car race is now also generally considered unfit to drive a motor vehicle and the aforementioned suspension is always imposed in principle.
- In less serious cases, a driving ban may be imposed for a period of one month to six months
- The vehicle used in the illegal car race can be confiscated according to § 315 f of the penal code and the ownership can be seized, which is usually perceived as particularly "harsh" by the persons concerned. It comes as a surprise to many that even vehicles that do not belong to the racers themselves can now be confiscated! In the end, other people’s property can be seized as well. In our experience, the at least provisional confiscation of the vehicle "to break up the racing scene" is regularly used!
5.1 insurance pays for illegal car racing?
If accidents are caused by grossly negligent behavior, comprehensive insurers are regularly not required to pay out. By definition, gross negligence occurs when the rules of the road are violated in a particular way, when due care is disregarded to a great extent or is not observed.
In the case of an illegal car race, it will often be assumed that there was gross negligence. The perpetrator of an illegal car race will therefore be "left sitting" on his damages (damaged or destroyed vehicle).
Other uninvolved injured parties (for example, vehicles that were collided with and did not participate in the illegal race) will receive damages from the motor vehicle liability insurance of the racer.
However, since the insured party has acted "uninsurable" by participating in the race, the liability insurance will regularly try to take recourse against him.
This means that the racer must pay back the damage incurred up to certain maximum limits.
Both can lead to financial ruin.
6. What is an illegal motor vehicle race?
According to the legal text of the racing paragraph § 315 d stgb is punishable:
"who in road traffic
- An unauthorized motor vehicle race organizes or carries out,
- As a motor vehicle driver in an illegal motor vehicle race participates or
- To be charged as a motor vehicle driver with inappropriate speed and grossly contrary to traffic regulations and recklessnessmoving to achieve the highest possible speed."
So there are 3 modalities of acts to be distinguished:
1. Organizing and conducting a prohibited motor vehicle race.
The align of a race ( organizer ) plays almost no role in the investigation procedures of the police.
At carry out the participation of motor vehicle drivers other than those taking part in a race is punishable (for example, marshals, timekeeping, start signal, marking the finish line). Also this variant is largely insignificant in practice.
2. Extremely relevant and the variant most often accused is the nr.2 in the legal text: the "classic" participation in the races with several participants.
3. Also relevant is the highly controversial variant in nr. 3 in the text of the law: the so-called race alone ("race against itself")
6.1 race with several participants, §315 d abs. 1 nr. 2 stgb
What is a race?
With regard to the concept of a race, the legislative procedure referred to the previous regulation of § 29 abs. 1 stvo af case law referred to:
"A race is a competition or part of a competition to achieve the highest speeds or highest average speeds with motor vehicles, in which a winner is determined between at least two participants by achieving the highest possible speed."
This definition is used by law enforcement agencies and courts as a guideline, along with the relevant case law:
- One drives a longer distance against the other
- A "sprint race": the drivers are chasing each other for a short distance, for example from traffic light to traffic light (no fixed minimum distance)
It does not depend on a common start.
It requires before none explicit agreement ( wild racing ). An implied (conclusive) agreement is also sufficient, for example through mutually provoking driving. However, it is not sufficient – which is often forgotten – if two drivers race independently of each other but in parallel; this can, however, constitute a so-called solo race, which is more difficult to prove.
According to individual court decisions, the technically feasible maximum speed of the vehicles is not decisive. The comparison of the mutual acceleration potential of the vehicles by the participants in the race shall be sufficient.
The reciprocal striving for higher speed or acceleration should be decisive for a race. The determining factor for the acceptance of a race is to be the competing by speed its. It does not depend on the technically feasible maximum speed, the length of the track, the type of start or a fixed target.
Various rulings on racing are controversial:
Wheels tires or loud engine noise at the start alone are, according to a decision of the chamber court berlin of 06.04.2017 not sufficient, but may be mere impertinence represent. Other decisions also see this as a criterion for a race. A mere "poser ride"according to a decision of the hamburg higher regional court dated 05.07.2019 not sufficient.
In part, the concept of racing is criticized for being indeterminate and the citizen cannot recognize what is punishable. However, in the case of a race of two or more participants, the jurisprudence has not followed this rule.
Excursus: what is speed?
In the case of illegal car racing, it is particularly important to determine the accused speed and the distance traveled. How is this done arithmetically?
Technically, speed (v) is the distance (s) covered in a certain time (t). The formula for this is: v=s/t
Speed is calculated in kilometers per hour (km/h) or meters per second (m/s).
If you want to convert the speed indicated by the speedometer in km/h to meters per second (m/s), you have to divide by 3.6.
|10 km/h = 2.78 m/s|
|30 km/h = 8,33 m/s|
|50 km/h = 13.9 m/s|
|100 km/h = 27.8 m/s|
|120 km/h = 33.3 m/s|
|150 km/h = 41.6 m/s|
|170 km/h = 47,2 m/s|
|200 km/h = 55.5 m/s|
However, it must be taken into account that the tacho speed is usually approx. 4 km/h higher than the actual speed is displayed.
Acceleration is the change of speed. The acceleration indicates how much the speed changes in each second.
6.1.1 how do races occur in practice??
Three versions of the race are observed in road traffic:
- The classic "sting": immediately after the start of the traffic light, there is a race for it.
- The "accumulation"several drivers slow down together during the race in order to slow down the following traffic (often with warning lights on) until there is a clear road ahead and then the race is started at a joint signal.
- The "successive racing": initially, the parties involved drive independently of each other and then decide to race by repeatedly accelerating and braking and attempting to overtake each other and/or. Preventing it.
6.1.2 which indications of a race decide in court?
The investigating authorities and the court in the trial try to prove the crime on the basis of certain evidence:
- Communication among the race participants (hand signals or verbal)
- Back and forth at the stop line
- Revving engines at idle
- Squealing/smoking tires at the start if necessary. With smoke development ( burnouts )
- Simultaneous speed recording and if necessary. reduction
- Breakaway rear end on rear-wheel drive vehicles
- Delayed start at "green
- Speed and acceleration
- distance development to the following traffic and to each other
- Change of position
- Lane change
- warning lights
Key question: there is a reciprocally competitive driving behavior?
In addition, it often plays a role for the court whether vehicles typical for racing (high-powered or tuned vehicles) are being used, whether the vehicles are being driven in places known to the scene or whether there is even an audience.
6.1.3 how is an attempt made to prove a race?
The accusation of racing often comes about through reports from police officers who claim to have observed a race from an emergency vehicle.
But witness statements from other road users or passers-by can also be decisive. these are then heard in the court hearing.
The technical possibilities for proving a race are also becoming more and more advanced;
Even without an accident after a race, the investigating authorities have numerous investigative leads from which conclusions about a race may be possible:
- Video retrace with the emergency vehicle (provida, vidista)
- Dash-cams in the emergency vehicle (onboard video)
- Video surveillance at or in houses at the crime scene
- Video surveillance at intersections on the race track
- reading of radar measuring devices on the race track
- Reading of vehicle data in offender vehicles depending on vehicle type and year of manufacture. Electronic control devices in the vehicle store the vehicle data (speed, acceleration, position of the steering wheel, operation of the brake and gas pedal pedals).
- Reading of geo-position data (navigation devices, car sharing, TESLA) from offender vehicle, depending on the manufacturer from the data based on the distance traveled, the speeds, the duration of the trip, the modes of the automatic transmission, etc., can be decisive. It can be concluded
- Reading of a dash-cam in the offender’s vehicle
- Reading out the cell phones of the offenders to prove an agreement to race; but also to prove the speeds by the respective logging into radio cells
In case of an accident after a race additionally:
- Evidence from read-out vehicle data in the offender’s vehicles can often provide the investigating authority with findings for a race. If there was an accident, it is already recommended to read out the data in the EDR (event data recorder in the airbag control unit) for vehicles built in 2014 or later. From the EDR, accident analysts, vehicle manufacturers and system manufacturers can reconstruct the course of the speed, the accelerator pedal position and brake application over the last 5 seconds before the airbag was triggered.
- Evaluation of the tracks on the roadway
The "transparent motorist
As a result of EU Regulation 2019/2144, accident data loggers and driver monitoring systems (drowsiness detection, attention monitoring and distraction detection) will be mandatory from 06.07.Mandatory for all vehicles registered in the EU in 2022.
Increasingly, the car becomes a witness against its own driver.
6.1.4 what can we as an attorney argue against the acceptance of a race?
We will examine all the evidence in detail:
First of all, the question arises as to whether the evidence is based on statements made by observing police officers or third parties (passers-by, other road users).
In the case of statements by police officers, the considerable trust that police officers usually have in the court must be countered by precise inquiries.
The testimonies of witnesses must be closely scrutinized for their credibility.
In this context, attention must also be paid to the extent to which it was actually possible to observe the location of the witnesses. This can be doubted in particular in the case of observations by police officers from emergency vehicles due to the distance of the vehicle, their own movement and other traffic.
Mere speed estimates are often erroneous and subject to high tolerance deductions.
If video recordings or vehicle data are available, it is also necessary to determine the extent to which their quality and content allow conclusions to be drawn about evidence of a race and whether data protection concerns may arise.
Ultimately, it can be questioned whether the available evidence, for example in the case of a speeding tailgating in disregard of the permissible speed, fulfills the external indications of a competition between the vehicles and thus a race.
6.1.5 current case law of the cologne higher regional court
the cologne higher regional court has once again ruled in a recent decision dated 05.05.2020 (1 rvs 40 u. 42/20) decided on the prohibited motor vehicle race.
Current decision of the Cologne Higher Regional Court
The defendant was driving his Audi S3 Sportback in Aachen on the night of the crime. There was a passenger car of similar size in the left-hand adjacent lane. After making a turn, the defendant and the next car were initially driving at an adapted speed with a permitted 50 km/h.
Then, according to an implied agreement, the vehicles were accelerated considerably over a distance of 700 meters in order to determine which vehicle accelerated better. A patrol car with 3 police officers was driving behind the vehicles on the uphill straight road with some distance increasing and a speed of at least 130 km/h.
The police claim to have observed the event.
the aachen regional court had sentenced the offender to a fine of 100 daily penalty units, imposed a six-month driving ban (the driver’s license had already been temporarily revoked) and reserved the right to confiscate the vehicle used.
Under the in § 315 d abs. 1 fig. 1 and 2 stgb sanctioned race is according to the OLG cologne to be understood as a competition or part of a competition to achieve maximum speeds with passenger cars in which either a winner is determined between at least two participants by achieving the highest possible speed or the attempt to achieve the maximum speed serves the purpose of testing each other’s performance without the participants competing with each other.
The Cologne Higher Regional Court did not consider it an error of law that the Regional Court had assumed a speed of "around 130 km/h" in the specific case without having to make the usual deductions for fines when driving behind the wheel, since the principles of the fine procedure would not apply to the aforementioned racing offense.
However, may the considerable amount of the speeding violation cannot be additionally used to aggravate the punishment (violation of the prohibition of double recovery).
On the other hand the reserved confiscation of the vehicle is also not to be taken into account in a mitigating manner in the number of daily sentences, since the effect of the confiscation on the defendant is limited when the confiscation is conditional on the sale of the vehicle.
As a rule if the perpetrator of a prohibited motor vehicle race pursuant to section 69 para. 2 item. 1a stgb to be considered unfit to drive motor vehicles and therefore justified the revocation of the driving license (6 months to 5 years) and not a mere driving ban.
to rebut the presumption, special circumstances would have to be present, which would exclude a lack of suitability, at least at the time of the conviction. In an individual case, however, unsuitability could not be established if the defendant’s had successfully participated in a driving aptitude seminar or in traffic therapy.
This would be especially the case, if a longer provisional revocation of the driving license or further circumstances (if necessary.(longer driving without objections after the offence, missing entries in the driver suitability register…) would be added and in the concrete case would also suggest the elimination of the fitness deficiency.
The reasons for the verdict are incomplete, as it is not clear who offered the courses, what their content was and what effect they had on the defendant.
the judgment of the aachen regional court was overturned by the cologne higher regional court and the case was referred back to another criminal division of the aachen regional court for a new hearing and decision.
The decision of the Cologne Higher Regional Court is particularly interesting because it is one of the first decisions to take a closer look at the legal consequences (amount of the fine/imprisonment, revocation of the driving license/driving ban and reservation of the revocation of the driving license).