By: Adam L. Bantner, II

Board Certified Criminal Trial Law Attorney

The Accident-Report Privilege

Most Florida drivers are aware of the basic duty to exchange information with the other driver when and if they are involved in an accident. Fla. Stat. 316.062(1) requires this exchange and that this information be given to law enforcement as well. Fla. Stat. 316.062(4) makes the failure to exchange a non-moving violation.

Florida saw fit to encourage this exchange of information further by allowing any information so given pursuant to this requirement to be given free from fear that it could be used against the person in any civil or criminal trial. Subsection (3) of Fla. Stat. 316.026 specifically states that, “[t]he statutory duty of a person to make a report or give information to a law enforcement officer making a written report relating to a crash shall not be construed as extending to information which would violate the privilege of such person against self-incrimination.”

Additionally, Fla. Stat. 316.066 requires law enforcement to gather information from those involved in an accident for the purpose of completing an Accident Report. Much like subsection (3) of Fla. Stat. 316.026, subsection (4) of Fla. Stat. 316.066(4) provides that

“[e]xcept as specified in this subsection, each crash report made by a person involved in a crash and any statement made by such 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. Such report or statement may not 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 by the person involved in the crash if that person’s privilege against self-incrimination is not violated. The results of breath, urine, and blood tests administered as provided in s. 316.1932 or s. 316.1933 are not confidential and are admissible into evidence in accordance with the provisions of s. 316.1934(2).”

Thus, §316.066(4), Florida Statues, provides an accident-report privilege which prohibits a statement obtained during an accident investigation from being used as evidence in any trial.

In a Criminal Prosecution, Identity is Always Important

In every criminal prosecution the State must prove that the defendant sitting before the judge or jury is the person who committed the crime. A lot of times, the person’s true name is not important. However, there are a handful of crimes where a person’s actual identity is essential to the prosecution. Hence, accident-report privilege. Crimes such as felon in possession of a firearm (State must prove person is a convicted felon), failure to register as a sex offender (State must prove person has been convicted of a listed sex offense), driving on a suspended license (state must prove person’s driver’s license suspension), etc. The general gist is that the person being accused has some individual fact in their individual history that must be proved in order for the State to win the conviction.

The Accident-Report Privilege Protects Identity

In State of Florida v. Ruben Jones, 27 Fla. L. Weekly Supp. 782b (10^th Cir. Ct. 2018), Jones was involved in a traffic accident. A Deputy Knox arrived on scene and performed his traffic accident investigation. During the investigation, he learned that Jones’ driver’s license had been revoked for approximately 60 months. As such, Jones was arrested for driving on a revoked or suspended driver’s license.

In situations such as Jones, where an officer develops evidence of a crime during the traffic accident investigation, the law enforcement officer will typically “switch hats” at some point. What this means is that the officer will specifically tell the suspect, “I am concluding my traffic accident investigation. I am now conducting a criminal investigation. You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney at any time. If you cannot afford an attorney, one will be provided for you.”

Most people, because they are not lawyers, assume that because the officer already knows the information from the traffic investigation that it will not make any difference whether they tell them the same information after the switching of the hats. However, that couldn’t be further from the truth because, as discussed above, everything said during the traffic investigation is inadmissible during a criminal or civil trial. The law enforcement officer needs a person to say it all again so that it will be admissible.

In Jones, the officer never switched the hats. Without the switching of the hats, the officer did not possess any admissible evidence of Jones’ name. Without admissible evidence of Jones’ name, the State could not prove that Jones had a suspended license. Without evidence of a suspended license, Jones must be acquitted. In Jones, the court suppressed any evidence of his identity. The appellate court upheld the ruling leaving the State without the necessary evidence to prosecute the case.

State v. Evans, 692 So.2d 305, 306 (Fla. 4d DCA 1997) found that “there is no longer an exception to the privilege for statements made if the identity of the driver is in question.” In fact, a person’s statement providing their identity is also suppressible if the stop is unlawful. See Delafield v. State, 777 So.2d 1020 (Fla. 2d DCA 2000); State v. Perkins, 760 So.2d 85 (Fla. 2000); see also St. George v. State, 564 So.2d 152 (Fla. 5d DCA 1990).

Call for Your Free Consultation

As you can see, even a relatively simple charge such as driving on a suspended license may have complicated issues and defenses. You need an experienced attorney in your corner to fight your charge. Adam is board certified in criminal trial law by the Florida Bar. This is the highest level of expertise in any given practice area recognized by the Bar. Call 813.397.3965 today to schedule your free consultation.