subject: Strategic Use of the Florida Accident Report [print this page] Strategic Use of the Florida Accident Report
In Florida accident injury law, like most states, requires that when a motor vehicle crash is brought to the attention of law enforcement agencies a crash report be prepared by the investigating officer. This requirement is set forth in section 316.066 of West's Florida Statutes Annotate. Section 316.066(1)(a) provides that the report must be filed no later than ten days when an accident results in death or injury, when a party involved flees the scene of the accident, when a party is under the influence of alcohol, or when a vehicle is so damaged it must be towed1. In order for an investigating officer to properly investigate a crash scene, there must be cooperation from the parties involved.
Since providing information to the investigating officer may put parties in the position of making incriminating statements against themselves, section 316.066(5) allows a privilege for such statements given to a law enforcement while conduction and investigation. The privilege protects the speaker's 5th amendment right by keeping such statements from being used against the speaker in a civil or criminal trial. However, not everything included in the crash report is covered by this privilege Salama v. McGregor outlines what is not covered by the privilege.
"The privilege does not, however, preclude admission of the tangible evidence of an automobile accident, such as 'location of accident, vehicles' locations, skid marks, damage to vehicles, all observed by the investigating officer. All this information ordinarily appears on the accident report prepared by the investigating police officer and it is clearly admissible at trial."
Salama also points out that the accident reporting privilege may be waved.
"...a party may waive the accident report privilege if that party opens the door by introducing inadmissible information contained in the accident report."
In Addition to waiver, Florida has set out some important exceptions to the accident reporting privilege. One such exception is when the identity of the driver is not clear; "...there is an exception to the privilege and confidentiality of an accident report, filed pursuant to Chapter 316 of the Florida Statutes (1981), when the identity of the driver is an issue."
The second exception to the accident reporting privilege is when a party to an accident refuses to submit to a blood-alcohol test, after a police officer has lawfully requested it , is not coerced by the officer, and thus not protected by the privilege against self-incrimination." Since the accident report privilege is meant to protect parties' Fifth Amendment right, and the united states supreme court has deemed that refusal to submit to a blood -alcohol test does not fall within that right, the privilege does not apply.
The third exception occurs when the person who has given a statement to the investigating officer is not actually involved in the accident or the statement is not related to the cause of the accident. In Wisev. W.U. Telegraph Co., the employer of a party involved in a crash came to the scene after the crash occurred The employer told the investigating officer that the party was in the scope of his employment at the time of the accident. The defendant asked the court to exclude the statement by the employer under the accident reporting privilege. The court help that every made does not necessarily itself and it should be made by someone who is actually involved in the accident. The court allowed the statement to come in because the employer was not "present at the time of the, had no first-hand knowledge of any matter affecting the circumstances of the accident, and the statement made does not necessarily come under the privilege. The statement should have some bearing on the investigation itself and it should be made by someone who is actually involved in the accident. The court allowed the statement to come in because the employer was not "present at the time of the accident, had no first hand knowledge of any matter affecting the circumstances of the accident, and the statement attributed to him was not with respect to the cause of the accident or circumstances under which the accident occured." Similarly, in McTevia v. Schrag, a witness made a statement to investigating officer at the scene of the crash stating that he did not witness the accident. The witness later went to the police station and changed his statement. The plaintiffs wished to have the witness' first statement excluded under the accident reporting privilege. The court held that the first statement was admissible. A witness is not a party and is required to make n accident report. Therefore, such statements are not covered by the reporting privilege.
Florida also recognizes a fourth exception to the accident report privilege in cases where a party makes an excited utterance against their interest. In Perez v. State, a defendant, after crashing into a truck, got out of his car when the investigating officer arrived and said, "I'm a deputy sheriff and I f%@##! up."11 Perez had been drinking and sought to suppress this statement at trial. The court found this case to indistinguishable from Goodis v. Finkelstein. In Goodis, a defendant exclaimed, upon regaining consciousness, "Oh my God, I must have passed out again!"13 "The Third District found the utterance not to be part of an "accident report" and deemed the statement as admissible 'as a declaration which was part of the res gestae and... against interest.14" The court in Perez determined that the defendant's statement was also admissible.
"we have found nothing in the record to suggest that at the moment when Perez's words were spoken the officer had initiated a criminal investigation... and conclude that our resolution of this matter fits comfortably within the supreme court's emphatically expressed view that 'the purpose of the statute is to clothe with statutory immunity only such statements and communications as the driver, owner, or occupant of the vehicle is compelled to make in order to comply with his or her statutory duty under section 316.006(1) and (2)."
In Addition to the exceptions Florida courts have distinguished statements made to an investigating officer who is conduction a criminal investigation.
In Alexander v. Penske Logistics, Inc., there were two officers investigating a crash.16 One officer performed the accident investigation and the other performed the traffic homicide investigation. The estate wished to exclude statements made to the traffic homicide investigator. The court stated, "Trooper Tierney did not perform the accident investigation or use its results. Tierney administered Miranda warnings to the truck driver, and the truck driver waived his Miranda rights. No accident report privilege attached to the statements maybe by the truck driver to Trooper Tierney.: The court referred to a Florida Supreme Court Case.
"To clarify our decision, we emphasize that the privilege granted under section 316.003 is applicable if no Miranda warnings are given. Further, if a law enforcement officer gives any indication to a defendant that he or she must respond to questions concerning the investigation of an accident, there must be an express statement by the law enforcement official to the defendant that:this is now a criminal investigation," followed by Miranda warnings, before any statement by the defendant may be admitted."
This is sometimes referred to as the "changing hats" rule which applies even if the officer investigating the accident is the same officer conducting the criminal investigation.
Perhaps the most compelling exception to the accident report privilege is found in Hendrix v. Evenflo Company, Inc., a United States District Court in the Northern District of a Florida case. The Plaintiff sued an infant car seat manufacturer for a defective car seat that came apart during a low speed crash. The defendant sought to exclude the accident report. The court, interpreting Florida law, stated
"Evenflo also cites Florida's statutory privilege concerning statements made for the purpose of preparing a traffic accident report, Fla. Stat 316.006(7), for the astonishing proposition that an accident report may not be used in a trial. This argument is meritless" The court explained it's holding as follows:
(A) Public records and reports are excepted from the usual rule barring hearsay. In pertinent part, Rule 803(8) provides the exception for: 'Records, reports, statements, or data complications, in any form, of public offices or agencies, setting forth...
(B) matters observed pursuant to duty to report,... or (C) in civil action and proceedings...factual findings resulting from an investigation made pursuant to authority granted by law unless the sources of information or other circumstances indicate lack of trustworthiness."
The court explained further how the investigating officer prepared the report,
"...he simply followed his usual, official procedure of gathering relevant information regarding the accident and from that prepared a written report. Nothing in Noiseux's procedure suggests a lack of trustworthiness... Noiseux will be permitted to testify as a fact witness as to it's preparation and the information it contains."
In sum a Florida auto accident lawyer should know, Florida law provides protection for the parties' 5th Amendment right against self-incrimination. It has done this by creating a privilege in the accident reporting statute. More important than the privilege however, are the exceptions discussed above when attempting to place the crash report data and the investigating officer's testimony into evidence.
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