Published on Sunday, October 12, 2003
in the Ft. Lauderdale Sun-Sentinel
Defense attorneys are poised to battle politicians and police who say a person who watches drag racing on a public highway, but doesn't actually participate, should still be charged with a crime.
As state politicians get ready to create stiffer penalties against drag racers in Tallahassee next year, police say the only way to nab the drivers is to go after their audience.
The argument isn't working for defense attorneys who are preparing for trials to defend spectators in court. At the same time, state prosecutors are considering upgrading the charges of more than 100 spectators in a recent crackdown in Miami-Dade County from "unlawful assembly" to drag ng, as defined by a year-old law that penalizes stopping or slowing trafficraci.
Both prosecutors and the Florida Highway Patrol say the largest known drag-racing sting operation in the state on July 31 was so successful, there will be another one soon.
They say those who watch the races are assembling illegally — defined as three or more people meeting to commit a breach of the peace or other unlawful act — and cracking down on them is the only way to wipe out drag racing. The state law against drag racing, effective October 2002, also prohibits anyone from causing traffic to stop or slow down for a drag race. A violator may be fined up to $500 and lose driving privileges for a year, with the penalties doubled for a second violation within five years.
On the one night in July, troopers arrested 47 juveniles, some as young as 12 and 13, many of whom were riding in the backs of the speeding cars. Twenty-one adults were charged with misdemeanors for drag racing along a mostly deserted stretch of U.S. 27 and Krome Avenue between Miami-Dade and Broward counties. Troopers also arrested 129 spectators lining the highway.
Many of the spectators arrested have already pleaded guilty and paid — at minimum — a $100 restitution fine, which went to the FHP to pay for the sting operation, officials said. But others say they did nothing wrong.
Miami-based defense attorney Mark Eiglarsh is representing two of the spectators. He said he will argue that since his clients did not gather to commit a crime, they did not violate the unlawful assembly statute.
"They were standing in a location looking," he said. "That's not a crime." One of Eiglarsh's clients, Jonathan Ponce, 19, of Miami, entered a not-guilty plea in his case last month. If convicted, he faces up to 60 days in jail for unlawful assembly, plus a fine if charges are upgraded to drag racing.
Politicians defend the laws and say they want even stiffer penalties. They say based on anecdotal evidence, they think street racing has become more popular, especially since the release of movies such as The Fast and the Furious.
In June, William Lacasse Jr., 17, of South Bay in Palm Beach County, lost his life racing against the drivers of two other cars at Southwest Eighth Street and 79th Avenue in Miami. Earlier the same week, a street-racing crash on the Rickenbacker Causeway in Miami-Dade County sent two children, ages 2 and 3, and four adults to the hospital.
Citing the stream of deaths and injuries, State Rep. Ralph Arza, R-Hialeah, sponsored the law making drag racing a misdemeanor offense. He said he plans to promote a new bill next session toughening the penalty for a drag racer to include seizing the car.
And he said he has no pity for the spectators, either, and hopes troopers statewide continue to clamp down.
"This is a serious issue. This is an issue we need to address in our state," Arza said. "We cannot have people closing down interstate highways for purposes of recreation. We can't have that. That's not negotiable."
Police defend the crackdown, saying without an audience, there would be no crime. Gawkers block the road with their cars and then egg on the racers, said Miami-Dade FHP Lt. Julio Pajon.
"A lot of them assisted in closing down the roadway," he said, referring to the July 31 sting on U.S. 27.
"Does the charging document [say] that my client was blocking the roadway or was cheering anybody on?" Eiglarsh responded. "You don't make 194 arrests based on a general premise. Each defendant needs to be charged accordingly.
"What they're criminalizing is going and looking at something. That's unconstitutional."
Pajon also shrugged off Eiglarsh's contention that some spectators, including his clients, were just passing through. Undercover officers milled around the crowd before the bust to make sure they knew who was there to watch the races, he said, while police monitored the scene from an aircraft. "If anybody that particular night had a good excuse why they were there — just passing through — we would have released them," Pajon said.
Stephen Talpins, chief of the county court division of the Miami-Dade County prosecutor's office, agreed with the need to go after the drag-race audience. "There's a legal theory that if one person incites or encourages another person to commit the crime, then the person who incites the activity is responsible as well.
"We need to do what we can to deter this dangerous kind of activity," Talpins said. "Highways aren't designed to be raceways. There's nothing about a highway that makes it safe to pull off and watch a race."
FHP Sgt. Robert Purser said in Broward the problem is generally confined to motorcycle drag racing. Although there is no plan for a crackdown in Broward or Palm Beach County, he said, the agency hasn't ruled it out, either.
Meanwhile, some spectators feel they are being picked on wrongly. In a statement released by his attorney, Eiglarsh, Ponce is quoted as saying: "We were treated like we were actually drag racing, like we were endangering lives. We weren't."