Florida’s Accident Report Privilege
Florida Statute Section §316.062 provides that the driver of any vehicle involved in a crash resulting in injury to or death of any person or damage to any vehicle or other property which is driven or attended by any person shall:
- give his or her name, address, and the registration number of the vehicle he or she is driving; and
- shall upon request and if available exhibit his or her license or permit to drive, to any person injured in such crash (or to the driver or occupant of or person attending any vehicle or other property damaged in the crash); and
- shall give such information and upon request exhibit such license or permit to any police officer at the scene of the crash or who is investigating the crash; and
- shall render to any person injured in the crash reasonable assistance.
To ensure that compliance with this requirement DOES NOT impinge upon constitutional protections, the Florida Legislature established the ACCIDENT REPORT PRIVILEGE. Its purpose is to avoid violating the driver’s 5th amendment rights against self-incrimination.
The privilege does not apply to the fact that a blood alcohol test, breath alcohol test or urine test was taken or refused (although the actual words of refusal may be excluded from evidence).
The privilege goes not apply to non-testimonial field sobriety exercises since 5th Amendment protections do not apply to those. State v. Horrell , 11 Fla. L. Weekly Supp. 87 (Fla. 9th Cir. Ct.) .
Under Fla. Stat. §316.066, each crash report made by a person involved in a crash and any statement made by such a person to a law enforcement officer for the purpose of completing a crash report required by this section shall be without prejudice to the individual so reporting.
No such report or statement shall be used as evidence in any trial, civil or criminal. However, subject to the applicable rules of evidence, a law enforcement officer at a criminal trial may testify as to any statement made to the officer involved in the crash if that person’s privilege against self-incrimination is not violated.
Therefore, statements made during the crash investigation are not admissible in court. When the officer has completed the crash investigation if the driver is told the officer is switching hats and now moving to a criminal investigation and if Miranda warnings are given, then the driver’s statements are generally admissible.
What Constitutes a Crash?
Under Florida Statute Section 316.645, the officer at the scene of a traffic crash has the authority to arrest the defendant when:
- the police officer makes an investigation at the scene of a traffic crash;
- based upon personal investigation, the officer has reasonable and probable grounds;
- to believe that the person has committed any offense under the provisions of this chapter, chapter 320, or chapter 322 in connection with the crash.
In DHSMV v. Williams, 937 So.2d 815 (Fla. 1st DCA 2006), the courts had found Florida Statute 316.645 not to be applicable when no crash occurred. The court concluded:
In quashing the suspension order, the circuit court acknowledged that no Florida appellate court had defined the term ‘traffic crash’ as used in section 316.645, but it decided, from its review of a Florida county court order, State v. Lane, 5 Fla. L. Weekly Supp., 558A (Fla. Broward Cty. Ct.1998), and several out-of-state appellate court decisions, that no traffic crash had occurred, which is an essential requisite to the validation of the warrantless arrest.
The court interpreted the term “traffic crash” as requiring “there be some observable result of forceful contact with another vehicle, person, or object before an investigation can be commenced, or a warrantless arrest made, pursuant to that statute.” It concluded that no forceful contact had taken place, because the crash report reflected only nominal damage, and, in the absence of such contact, no legal traffic crash could occur, thereby requiring that the warrantless arrest be invalidated. We cannot agree.
Common sense tells us that a crash involves damage to another vehicle or property through an impact between the defendant’s vehicle and the damaged property.
Switching Hats During a Crash Investigation
The term “switching hats” means that for a statement of a driver involved in a crash in a criminal case to be admitted into evidence the officer must advise the person that the accident report investigation is complete and must switch hats by advising the driver he/ she is now switching from an accident investigation into a criminal investigation and advise the Defendant of his/her Miranda rights.
Any statements the driver makes after the switching of the hats occurs are admissible and anything that was stated before hand is generally not admissible.
The case of State v. Cino, 931 So.2d 164 (5 th DCA 2006) found that the accident report privilege does not generally prohibit the State from using the officer’s observations of any aspect of the Defendant or the Defendant’s behaviors.
That testimony can include observations about the defendant’s physical appearance, general demeanor, slurred speech, and/or odor of alcohol. The Accident report privilege does not usually bar statements fo anyone other than the defendant. Navarro v. Kohan, 566 So.2d 895 (Fla. 4th DCA 1990).
Exceptions to the Accident Report Privilege
Under Florida law, the accident report privilege does not generally apply the following:
- A person who leaves the scene (under some circumstances).
- A person who claims to be present at the scene of the accident, but denies involvement in the accident. See Navarro.
- A person who makes false statements in a report. State v. Escobar, 11 Fla. L. Weekly Supp 314 (Fla. Dade Cty. Ct. 2004) .
- Spontaneous statement NOT made in response to any question are generally not protected. Perez v. State, 630 So.2d 1231 (2nd DCA 1994); Shea v. State, 13 Fla. L. Weekly Supp. 558(B) (Fla. Palm Beach County. Cir Ct. ) (Purpose of statute is to clothe statements and communications as the driver, owner, or occupant of a vehicle that the driver is compelled to make in response to questions). A statement made during an accident investigation is not privileged when made spontaneously and not in response to any question because the statement is not compelled. For example, when a defendant exits a car and immediately says to the officer, “I’m really screwed up and shouldn’t be driving.”
The Accident Report Privilege Does NOT Apply to Administrative Proceedings
The prosecutor will often argue that the “accident report privilege” does not apply in administrative proceedings reviewing driver license suspensions. The prosecutor will argue that the Florida Legislature has specifically authorized the use of crash reports in administrative proceedings conducted pursuant to Florida Statute Section 322.2615.
The statute provides that:
(2)(b) The officer may also submit a copy of the crash report and a copy of a video recording of the field sobriety test or the attempt to administer such test. Materials submitted to the department by a law enforcement agency or correctional agency shall be considered self-authenticating and shall be in the record for consideration by the hearing officer. Notwithstanding s. 316.066(4), the crash report shall be considered by the hearing officer.
Section 322.2615(2)(b), Florida Statutes (2016) (emphasis added). See also Spears v. Dep’t of Highway Safety and Motor Vehicles, 20 Fla. L. Weekly Supp. 744a (Fla. 4th Cir. Ct. March 4, 2013).
Attorney for Criminal Traffic Crash Investigations in Florida
If you are under investigation for a criminal traffic crash then contact an experienced criminal defense attorney at Sammis Law Firm to discuss this and other important defenses that apply in DUI and other types of traffic crash investigations in Tampa, FL, and the surrounding areas.
Call (813) 250-0500 to discuss your case with a DUI attorney in Tampa, FL, at Sammis Law Firm.
This article was last updated on Friday, August 17, 2018.