Scottilaro v. Figueroa, 2012 Fla. App. LEXIS 1787, 37 Fla. L. Weekly D 330 (Fl. Ct. App., 2d Dist. February 8, 2012)

The motor vehicle accident report privilege does not apply to a non-occupant witness.

The appellee personal representative filed a wrongful death action against the appellants, a driver and her spouse. The Polk County Circuit Court entered final judgment in favor of the appellee, and the appellants sought review. At issue here were statements made by witnesses to a motor vehicle accident, not a pedestrian, driver or passenger involved in the accident. The driver's car struck and killed a 14-year-old boy as he tried to cross a four-lane highway. Four of his friends provided sworn testimony to a deputy sheriff that the decedent was looking down at his phone and texting while crossing the highway. These statements were included in the deputy's accident report.

One of these friends testified in person. On cross-examination, he stated he did not know whether the decedent was texting or not. The portions of the deposition testimony of the other witnesses, in which they were impeached by defense counsel with their prior statements to the deputy, were redacted. The appellate court held that the trial court erred in refusing to allow defense counsel to impeach the witnesses with their prior inconsistent statements contained in the accident report.

As discussed, the accident report privilege set forth in § 316.066(5), Fla. Stat. (2010), does not apply to a witness to an accident, only to a driver, owner or occupant of a vehicle because those are the only people compelled to make a report under Florida's statutes. The purpose of the statutory privilege is to "ensure that the state does not violate an individual's constitutional privilege against self-incrimination when he or she is compelled to truthfully report to law enforcement the facts surrounding an automobile accident." State v. Cino, 931 So. 2d 164, 168 (Fla. 5th DCA 2006). Therefore, the trial court erred as a matter of law in excluding the impeachment testimony of key witnesses. As a result, the judgment was reversed, and the case was remanded for a new trial.

Case Law Alert - 2nd Qtr 2012