Helpful "Trial Tips®" to Hone Your Litigation Skills

Copyright © 2007

By: Ervin A. Gonzalez, Esq.
Board Certified Civil Trial Lawyer,
Florida Bar and National Board of Trial Advocacy

Florida law considers communications between police officers and parties involved in motor vehicle accidents to be privileged. The reasoning behind this privilege is to promote honesty in reporting the facts involved in an automobile crash case to the police.

The Privilege

Pursuant to Fla. Stat. §316.066(4), accident reports are not admissible as evidence in any trial, civil or criminal nor are any statements made by the participants in the accident to the police officer investigating the accident. Florida Statute §316.066(4), states:

each accident report made a by person involved in an accident and any statement made by such person to a law enforcement officer for the purpose of completing an accident 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.

The result of breath, urine, and blood tests administered as provided in §316.1932 or §316.1933 are not confidential and shall be admissible into evidence in accordance with the provisions of §316.1934. The accident report privilege includes all statements made to and by police officers with regards to the investigation of the accident. McTevian v. Schrag, 446 So.2d 1183 (Fla. 4th DCA 1984). The purpose of the accident report privilege is to promote truthfulness in reporting accidents to the police. This helps in the determination of who is truly at fault for the accident. It also assists the State of Florida in making highway safety a priority for all. Department of Motor Vehicles v. Corvin, 527 So.2d 868 (Fla. 1st DCA 1988); rev. den., 534 So.2d 399.

The privilege is intended to benefit the person making the statement and the person involved in the accident so as to allow them to speak truthfully without any prejudice to them in any subsequent civil trial. Id. Additionally, the privilege is intended to benefit the public by enabling the Department of Motor Vehicles to collect relevant information and statistics on persons involved in accidents. Hoctor v. Tucker, 432 So.2d 1352 (Fla. 5th DCA 1983).

The accident report privilege covers any communication made to the police officer by anyone involved in a motor vehicle accident. This includes the driver, the owner of the vehicle, and the occupants of the vehicle at the time of the accident. Brackin v. Boles, 452 So.2d 540 (Fla. 1984); Yost v. State, 542 So.2d 419

The accident report and statements made to the investigating officer may not even be used for impeachment at trial. Wiggen v. Bethel Apostolic Temple, 192 So.2d 796 (Fla. 1966); vacated on other grounds, 201 So.2d 911. Even if someone overhears an individual who was involved in the automobile accident making a report to the police officer, said individual may not testify as to what the involved party said to the investigating officer. Allowing the testimony of an eavesdropper or a witness to the privileged statement at trial would defeat the very purpose of the accident report privilege. See Herbert v. Garner, 78 So.2d 727 (Fla. 1955).

Not Privileged

The accident report privilege does not cover any communication made by eyewitnesses to the accident that were not "involved" in the accident. McTevian, 446 So.2d 1184. In the McTevian case, the testimony of an eyewitness motorist who was following directly behind the car involved in the automobile accident was deemed to not be privileged. The reasoning was that the eyewitness was not required by law to report the accident to the investigating officer and was, therefore, not an individual involved in the accident. Id.

If an eyewitness is somehow responsible for the accident by either forcing a car off the road, or swerving into a lane and causing another motor vehicle to have an accident, that would be sufficient to consider the eyewitness who caused the accident to be "involved" in the accident. Therefore, any communication made by that individual to the police would be considered privileged. Wiggen, 192 So.2d at 796.

The accident report privilege does not protect findings and statements made in criminal or homicide investigation reports. Standely v. White, 326 So.2d 68 (Fla. 1st DCA 1976); State v. Mitchell, 245 So.2d 618 (Fla. 1971). Further, results of field sobriety tests, breath tests, and blood tests are not considered to be confidential communications and are admissible as evidence in civil and criminal cases. Eicholz v. Pepo Petroleum Company, Inc., 475 So.2d 1244 (Fla. 1st DCA 1985), rev. den., 476 So.2d 673.

Police officer's tangible evidence findings at the accident scene are not encompassed within the privilege and may be introduced as evidence. Hammond v. Jim Hinton Oil Company, Inc., 537 So.2d 995 (Fla. 1st DCA 1988). This means that distances, skid marks, resting places of people, cars, and other physical findings are not privileged pursuant to Fla. Stat. §316.066(4). Id. Be aware that the privilege does not apply in criminal trials absent a Fifth Amendment violation. See, State v.Riley, 617 So.2d 340 (Fla. 1993).

Another exception to the accident report privilege exists when the identity of a driver involved in the automobile accident is at issue. For example, if a defendant driver says he was not at the scene of the accident at the time of the accident, the privilege does not apply and the accident report and police officer's testimony may be used at trial to prove the identity of the defendant driver. O'Brien v. Ortiz, 467 So.2d 1056 (Fla. 3d DCA 1985); Sylvester v. State, 557 So.2d 180 (Fla. 3d DCA 1990).

Conclusion

When preparing for the trial of an automobile accident case, use the accident report to guide you and provide you with a basic outline of how the accident may have happened, what parties were involved, and what witnesses are available. Nevertheless, do not plan on moving the report into evidence, unless it meets one of the exceptions stated herein. A trial lawyer must prove how an automobile accident occurred by obtaining witnesses statements, taking photographs, interviewing the client, rather than relying on the accident report to prove his or her case.