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Florida’s Accident Report Privilege

In Florida there are two types of privileges; those that are long standing and set out in the Florida Evidence Code and those that are simply statutory privileges, i.e. created by statute.

Accident Report Privilege is the latter and falls under Fla. Stat. 316.066(7). The purpose behind statutory privileges are similar to the ones delineated in the evidence code in that they exist to allow people to speak freely by not allowing their statements to be used against them in subsequent litigation.

When law enforcement comes to the scene of an accident, they have a duty to interview the persons involved and prepare an accident report. The accident report privilege helps to ensure that the investigating officer will get complete and truthful information from the persons involved in the accident so an accurate accident report is generated. If the statements could be used in subsequent litigation then the parties would not be inclined to cooperate with law enforcement and law enforcement would be unable to prepare an accurate accident report. Having accurate accident reports serves a public interest and that public interest is more important to society than an individual’s desire to use those statements in subsequent litigation.

Accident scenes are typically not conducive to confidential communication. Thankfully, the communication does not have to be confidential in order to fall under the accident report privilege. Should that communication to law enforcement be overheard by another party such as a witness, that communication is still protected and cannot be used in subsequent litigation.

Like all privileges, there are exceptions to the accident report privilege. Identity of the driver is an exception. In addition, an excited utterance or spontaneous statement which is not in response to a question by law enforcement does not fall under the privilege. Statements made by witnesses who are not involved in the accident do not fall under the privilege. The privilege only applies to the driver, owner, occupants and those directly involved in the accident that have a statutory duty to speak to law enforcement regarding the accident.

In addition, like all privileges the privilege can be waived by failing to object to use of privileged communications at trial. Where this privilege appears different than those delineated in the evidence code such as attorney client privilege is that recent case law allows for there to be inquiry into those privileged communications at deposition. In a deposition, if a party is asked to divulge any communication between the attorney and client, the attorney would immediately object and instruct the witness not to answer that question and the court would uphold that objection. Suppose instead the party is asked to divulge what they told the investigating officer at an accident scene, the attorney would still voice an objection as to the admissibility but could not get away with instructing the client not to answer that question. Answering the question does not waive the privilege and that information will still not be admissible at trial; however, that information may be used to discover admissible evidence that can be used at trial. One could argue a more accurate name for this privilege would be the accident report inadmissibility rule.
In light of the complexities of the accident report privilege, you should always consult a Board Certified Civil Trial Attorney who specializes in accident cases if you are involved in an automobile accident.

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