Car drivers or motorcyclists who are found to have been racing illegally no longer get off lightly: since 2017, illegal car racing has been considered a criminal offense rather than a misdemeanor.
This entails considerable consequences – even if no one is injured in the process. In addition, it is often not considered what consequences an illegal car race has for the car insurance in the event of an accident.
We explain, which punishments threaten and with which Raser still must count.
If you too are accused of participating in an illegal car race, keep quiet and seek legal advice.
For this accusation depends on the right defense by an experienced lawyer in this particular field.
Contents of this page
1. Race: A case from our law firm
One of our numerous nationwide defenses on charges of illegal street racing; here a case without a serious outcome (accident resulting in injury or death):
Five motorcyclists allegedly engaged in illegal street racing in Cologne, Germany, 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 route, want to have observed a red light violation by a motorcyclist and, in the aftermath, an illegal race by a group of motorcyclists among whom 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. by a representation that the motorcycle running the red light was not part of the motorcycle group, a detailed questioning of the police witnesses and an exposition of the course of the road, which raised doubts in the court about the version of a road race by the police. The indications necessary for a race about which we report still in the further one could be shaken by us.
The driver’s license had to be surrendered 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 entry into force of the new racing paragraph: § 315 d StGB in 2017, more than 1800 preliminary proceedings have been initiated in Berlin alone (as of 2021). Almost 800 cases were prosecuted and more than 350 cases were closed with a final verdict. Berlin takes with the number of the car races in relation to the number of inhabitants a top position under the nine Lands of the Federal Republic, which lead a statistic over the number of the procedures.
In North Rhine-Westphalia, Germany’s most populous state, 474 illegal car races were registered by police in 2018, just one year after the law was changed in 2017. An increase of 40% compared to 2017. In 2019, the number rose further to 659 cases.
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 appear to have had a deterrent effect.
However, the increasing numbers 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 acts. Whether there is actually an increase in the number of races is therefore not clear from the figures.
It is still to be noted from the statistics:
Of the preliminary proceedings for 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 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 German Criminal Code (StGB).
The new paragraph was created after the public and the tabloid media became increasingly aware of illegal car races in which bystanders 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 mild sentences. Punishment as a mere administrative offense was no longer seen as sufficient.
Until then, the regulation on fines only provided for a fine of 400 € and a driving ban of one month.
The initial spark 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.
Objective of the new penal law should be a firm proceeding against the “speeding scene.
After widespread discussion, the new paragraph was introduced in the Bundestag in June 2017, which means a strong intensification of punishment.
In addition, special commissions for car racing (Soko race) have been created in the police force, which since then has been carrying out focal checks in plainclothes vehicles at hotspots for car racing.
In our experience, the Soko Rennen is currently reporting not only clear 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 car races and – still on the spot – driving licenses and cars or motorcycles are confiscated.
4. What are the penalties for illegal racing??
The law provides for severe penalties in the case of a prohibited motor vehicle race.
Participants and organizers are threatened:
- a prison sentence of up to two years
- a fine
If the life or limb of another person or objects of significant value are endangered, the penalty depends on whether the act is negligent or intentional.
To be reckoned with in the event of negligent commission of a crime
- a prison sentence of up to three years
- of a fine
Specialist lawyer for traffic law Thomas Erven
“In the case of a first offender, fines of between 60 and 90 daily rates and a driving license revocation of 9 to 12 months are common.”
“However, it depends on the individual case: Length of the route, the speed driven, other traffic violations (for example, running red lights or overtaking on the right) and the traffic density are important criteria for the penalty “
Whether dangers caused by only one racing participant can also be attributed to the other racing participant is often problematic.
Those who act intentionally are threatened with
- a prison sentence of up to five years
If people are killed or seriously injured as a result of the race, the
- imprisonment from one year to ten years. (Minimum penalty thus one year imprisonment!). In less serious cases at least 6 months imprisonment
Here an enormous penalty aggravation was made. Whereas in the past only a prison sentence of 5 years was possible in the case of killing a person in a car race and no proof of intent, today a prison sentence of up to 10 years is possible; even if no intent to kill another road user can be proven.
5. What consequences does a race still have?
Participants or organizers must not only prepare for a criminal conviction. In addition
- the driving license of the accused already before the trial provisionally be confiscated
- the driving license can be revoked
- according to § 69 a StGB a barrier for the granting of a new driver’s license be ordered. The suspension, which is often problematic for the person dependent on a vehicle, lasts at least six months up to five years. In extreme cases, the ban applies forever. The minimum ban lasts for one year if a ban has already been imposed on the offender in the three years preceding the offence. After the addition of the legal text of § 69 StGB now also the perpetrator of an illegal car race is considered as a rule as unsuitable for driving a motor vehicle and the aforementioned ban is always imposed in principle.
- in less serious cases, a driving ban for a period of one month to six months may be imposed
- the vehicle used in the prohibited car race is confiscated according to § 315 f StGB and the property is seized, which is usually perceived as particularly “hard” by the persons concerned. It comes as a surprise to many that even vehicles that do not belong to the race participant himself can now be confiscated! Ultimately, therefore, also foreign property can be seized. In our experience, the at least temporary confiscation of the vehicle “to break up the racing scene” is used regularly!
5.1 Does the insurance pay in case of illegal motor vehicle racing?
If accidents are caused by grossly negligent behavior, comprehensive insurers do not have to pay regularly. 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, gross negligence will often have to be assumed. The perpetrator of an illegal car race will therefore “sit on” his damage (damaged or destroyed vehicle).
Other uninvolved injured parties (for example, vehicles with which collision occurred and which did not participate in the illegal race) will receive compensation payments from the motor vehicle liability insurance of the race participant.
However, since the insured party has acted “in breach of insurance” by participating in the race, the third party liability will regularly try to take recourse against it.
This means that the race participant must pay back the damage incurred up to certain maximum limits.
Both can lead to financial ruin.
6. What is an illegal car race?
According to the legal text of the racing paragraph § 315 d StGB is punishable:
“Who in road traffic
- a not allowed motor vehicle race organizes or carries out,
- as a motor vehicle driver in a not permitted motor vehicle race participates or
- to participate as a motor vehicle driver with inappropriate speed and grossly contrary to traffic regulations and recklesslyis driven in order to achieve the highest possible speed.”
So there are 3 crime modalities to distinguish:
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 of a race, the participation of motor vehicle drivers other than those taking part is punishable (for example, marshaling, timekeeping, starting signal, marking the finish line). This variant is also largely insignificant in practice.
2. Expressly relevant and the most often accused variant is no.2 in the text of the law: the “classical” participation in the Race with several participants.
3. Also relevant is the highly controversial variant in no. 3 in the legal text: the so-called Alone race (“race against oneself”)
6.1 race with several participants, §315 d para. 1 no. 2 StGB
What is a race?
With regard to the term “race”, the legislative procedure referred to the predecessor regulation of § 29 Para. 1 StVO aF case law is referred to:
“A race is a competition or part of a competition to achieve maximum speeds or highest average speeds with motor vehicles, in which a winner is determined between at least two participants by achieving the highest speed possible.”
This definition is used by law enforcement agencies and courts as a guideline, together with the relevant case law:
- drives a longer distance against each other
- a “sprint race”: the drivers are chasing each other only over a short distance, for example from traffic light to traffic light (no fixed minimum length)
It does not depend on a common start.
It requires beforehand none explicit agreement ( wild race ). An implied (conclusive) agreement is also sufficient, for example by mutually provoking driving. However, it is not sufficient – which is often forgotten – if two drivers race independently of each other, but in parallel; however, this can constitute a so-called solo race, which is more difficult to prove.
According to individual court decisions, it should not depend on the technically feasible maximum speed of the vehicles. The comparison of the mutual Acceleration potentials of the vehicles by the race participants should be sufficient.
The alternating Striving for higher speed or acceleration should be decisive for a race. The determining factor for the assumption of a race is to be the Competing according to speed his. 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 issued on the race are controversial:
Wheeling or loud engine noises at the start alone are, according to a decision of the Kammergericht Berlin of 06.04.2017 not sufficient, but can mere imposition show. Other decisions also see this as a criterion for a race. A mere “Poser trip” is supposed to be according to a decision of the higher regional court Hamburg from 05.07.2019 not enough.
Partly it is criticized that the racing concept is undefined and the citizen cannot recognize what is punishable. However, the jurisprudence has not followed this in the case of a race of two or more participants.
Excursus: What is speed?
It is particularly important in the accusation of illegal car racing to determine the accused speed and the distance traveled. How this is done mathematically?
Technically, speed (v) is the distance (s) covered in a given 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).
Who wants to convert the driven speed, which is indicated by the speedometer in km/h, into meters per second (m/s) must 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 should be noted that the speedometer speed is usually ca. 4 km/h higher than the actual speed displayed.
Acceleration is the change of speed. The acceleration indicates by how much the speed changes in each second.
6.1.1 How do races occur in practice?
Three versions of racing are observed in road traffic:
- the classic “Piercing“: After the traffic light start immediately around the bet is driven.
- the “Accumulation“Several drivers slow down together while driving in order to accumulate the following traffic (often with switched on warning lights) until there is a clear road ahead and then the race is started with a common sign.
- the “successive races“: Initially, the participants drive independently and then decide to race by repeatedly accelerating and decelerating and attempting to overtake each other or. its prevention.
6.1.2 What circumstantial evidence of racing decides in court?
The investigating authorities and the court at the trial try to prove the crime based on certain circumstantial evidence:
- communication among the race participants (hand signals or verbal)
- Moving forward and backward at the stop line
- engines howling at idle
- squealing/smoking tires at takeoff if applicable. with smoke development (“BurnOuts”)
- simultaneous speed recording and if necessary. Reduction
- Breakaway rear end of 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
- hazard warning lights
Core question is: If the driving behavior is mutually competitive?
In addition, it often plays a role for the court whether vehicles typical for racing (high-powered or tuned vehicles) are driven, whether they are driven in places known to the scene or even whether there is an audience.
6.1.3 How to try to prove a race?
The allegation of racing is often initiated by reports from police officers who claim to have observed a race from an emergency vehicle.
But also testimonies of other road users or passers-by can be decisive. These are then questioned in the court hearing.
The technical possibilities for proving a race are also becoming more and more advanced;
Even without a post-race accident, investigating authorities have numerous investigative leads from which to draw conclusions about a race:
- Video follow-up with the emergency vehicle (ProViDa, ViDistA)
- Dash cams in the emergency vehicle (onboard video)
- Video surveillance at or in houses at the scene of a crime
- Video surveillance at intersections on the race track
- Reading radar measuring devices on the race track
- Reading out vehicle data in offender vehicles depending on vehicle type and year of manufacture. Electronic control devices in the vehicle store vehicle data (speed, acceleration, position of the steering wheel, operation of brake and gas pedal pedals).
- Reading out geo-position data (navigation devices, car sharing, TESLA) from the offender’s vehicle, depending on the manufacturer, from the data on the distance traveled, the speeds, the duration of the journey, the modes of the automatic transmission, etc. can be concluded
- Reading a dash cam in the perpetrator’s vehicle
- Reading out the cell phones of the perpetrators to prove collusion for the race; but also to prove the speeds by the respective logging into radio cells
In the case of an accident after a race in addition:
- A proof by read out vehicle data in the perpetrator vehicles can often bring the investigating authority realizations for a race. If an accident has occurred, 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 speed, accelerator pedal position and brake application over the last 5 seconds before airbag deployment.
- Evaluation of the tracks on the road
The “transparent motorist
By the EU regulation 2019/2144 accident data storage and driver monitoring systems (drowsiness detection, attention monitoring and distraction detection) are 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 a lawyer argue against the assumption of a race?
We will carefully review all circumstantial evidence in detail:
The first question is whether the evidence is based on statements 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 with the court must be countered by asking precise questions.
The statements of witnesses must be closely scrutinized for their credibility.
Attention should also be paid to the extent to which it was actually possible to make observations from the location of the witnesses. This may be in doubt especially in case of observations by police officers from emergency vehicles due to the distance of the vehicle, own locomotion and further traffic.
Mere speed estimates are often flawed 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 there are any data protection concerns.
Ultimately, it can be questioned whether the present circumstantial evidence, as for example in the case of driving too fast behind in disregard of the permissible speed, fulfills the external indications of a competition fought out between the vehicles and thus a race.
6.1.5 Current case law of the Cologne Higher Regional Court
The higher regional court Cologne has again in a current decision of 05.05.2020 (1 RVs 40 u. 42/20) on the prohibited racing of motor vehicles.
Current decision of the Cologne Higher Regional Court
The defendant was driving his Audi S3 Sportback in Aachen on the night of the crime. A passenger car of a similar size was on the left-hand side lane. After a turn, the defendant and the person next to him had initially been driving at an adapted speed at the permissible 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 policemen behind the vehicles was driving on the uphill straight road with some increasing distance and a speed of at least 130 km/h.
The police officers claim to have observed the event.
The Regional Court of Aachen had sentenced to a fine of 100 daily rates, imposed a six-month driving ban (the driver’s license had already been temporarily revoked before) and reserved the confiscation of the used vehicle.
Under the prohibition of double exploitation set out in § 315 d para. 1 Num. 1 and 2 StGB, the Cologne Higher Regional Court held that the a competition or part of a competition for the achievement of maximum speeds with passenger cars is to be understood with those either between at least two participants a winner by reaching a maximum speed is determined or however the attempt of reaching the maximum speed serves the mutual achievement test, without the participants with one another in the competition would stand.
The Cologne Higher Regional Court did not consider it to be an error of law that the Regional Court had assumed a speed of “around 130 km/h” in the specific case without making the usual deductions in the case of driving after a fine, since the principles of the fine procedure would not apply to the aforementioned racing offence.
However the considerable amount of the speeding could not be additionally used to aggravate the punishment (Violation of the prohibition of double jeopardy).
On the other hand the reserved confiscation of the vehicle is also not to be taken into account in mitigation of the penalty in the number of daily sentences, since the effect of the confiscation on the defendant is limited in the case of reservation of confiscation with the condition to sell the vehicle.
As a rule the perpetrator of a prohibited motor vehicle race pursuant to § 69 para. 2 para. 1a StGB to be regarded as unsuitable for driving motor vehicles and therefore justifies the withdrawal 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 individual cases, however, the unsuitability could not be established if the defendant had been has successfully participated in a driving aptitude seminar or traffic therapy.
This would be the case above all, if a longer provisional withdrawal of the driving license or further circumstances (if necessary) are involved.The Higher Regional Court of Cologne did not find any error in the fact that the Regional Court had assumed a speed of “around 130 km/h” in this case: longer driving without complaint after the offense, missing entries in the driving suitability register…) would be added and would also suggest the elimination of the lack of suitability in the specific case.
The reasons for the verdict are incomplete, as it is not clear who offered the courses, what their content was and what effects 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).