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Florida's Traffic Accident Report Privilege: "Which Hat is the Officer Wearing ?"

Posted by Robert E. Heyman | Dec 16, 2020 | 0 Comments

Pursuant to Florida Statute Chapter 316.062, persons involved in motor vehicle accidents are required to provide their personal information (name, address, vehicle registration and drivers license) to both the other drivers involved in the crash and to the law enforcement officers investigating the crash. In addition, the statute requires persons to render "reasonable" assistance to anyone injured in the crash. This may include making arrangements for the injured to be transported to a hospital for treatment.

In order to ensure that the traffic investigation is accurate, the drivers involved must also provide the investigating officers with a statement describing how the crash occurred. With these requirements comes the protection of the Florida Accident Investigation Privilege. Those protections are two-fold. In order to protect the driver's Fifth Amendment privilege against self-incrimination, any statement made to the investigating officer is not admissible in any subsequent criminal proceeding arising from the accident. Secondly, any statement made by a driver ( and basically the entire report) is also inadmissible in a civil trial or most administrative proceedings. Such statements are usually inadmissible hearsay anyway.

Should the investigating officer suspect that a crime, such as DUI, may have occurred, the law specifically requires him to "change hats" from that of the civil traffic crash investigator to the criminal law enforcement officer. The officer must clearly announce this transition to the person being questioned and must also read that person his or her Miranda Rights prior to any additional questioning. There is some specific evidence that Florida courts have ruled to be "outside" of the Accident Report Privilege. These include the visual observations of the police officer, the refusal to submit to a breath, blood or urine test, and the driver's performance on roadside field sobriety tests. This evidence has been deemed "non-testimonial" and therefore admissible whether the driver has been advised of Miranda or not.

There are circumstances where the protections of the Accident Report Privilege can be waived by the driver's behavior following the crash. First and foremost, there is no privilege if the driver leaves the scene of the accident prior to the police officer conducting his accident investigation. Under those circumstances, most officers are savvy enough to later advise the driver of his or her Miranda rights, as the very fact of fleeing the scene of an accident gives rise to either a felony charge if injuries were involved, or a misdemeanor if the crash only caused property damage.

Bottom line, you must know your responsibilities if you are involved in a traffic accident. In addition, keep in mind the protections you are afforded by Florida law in return. If you see the officer "changing hats", the best advice you can heed is to contact your attorney before making any roadside statements which may expose you to criminal liability.

Should you find yourself in this situation or have any other questions concerning your rights , please feel free to contact Robert Heyman at his offices at 727-822-3700

About the Author

Robert E. Heyman

Bio Robert E. Heyman was born in Providence, RI, and grew up in Barrington, RI. He graduated from Barrington High School in 1974, and earned the rank of Eagle Scout. Following high school graduation, Mr. Heyman attended Northfield-Mt. Hermon Academy in Northfield, MA and thereafter attended co...


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