Car Accidents FAQ’s (part 2)

The answer to the question above is that, if you were the driver of a vehicle involved in an accident which led to injury/death or property damage, then you are actually required by Florida Law to talk to the police. For example, Florida Statute 316.065 states, “The driver of a vehicle involved in a crash resulting in injury to or death of any persons or damage to any vehicle or other property in an apparent amount of at least $500 shall immediately by the quickest means of communication give notice of the crash to the local police department, if such crash occurs within a municipality; otherwise, to the office of the county sheriff or the nearest office or station of the Florida Highway Patrol.” Moreover, if the driver of the vehicle involved in the crash is injured badly enough that he or she cannot talk to the police, then another occupant of the vehicle is required to talk to the police. For instance, Florida Statute 316.064 states, “Whenever the driver of a vehicle is physically incapable of making an immediate or a written report of a crash, as required in Florida Statute 316.065 and 316.066, and there was another occupant in the vehicle at the time of the crash capable of making a report, such occupant shall make or cause to be made the report not made by the driver.”

Nevertheless, although you may be required to talk to the police after an accident, your statements will not typically be admissible in Court. That is, the defense in your case will not usually be able to use your statements against you. This is for several reasons.

Firstly, as out-of-court statements offered to prove the truth of the matter asserted, your statements to the police are hearsay – and are thus not admissible in Court. The Defense in your case may argue that your statements represent the “excited utterance” hearsay exception. Nevertheless, the excited utterance exception to hearsay is defined statutorily as “Excited utterance - A statement or excited utterance relating to a starting event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Florida Statute 90.803(2). Moreover, there are three requirements for a statement to qualify for the excited-utterance exception to the hearsay rule: (1) there must have been an event startling enough to cause nervous excitement; (2) the statement must have been made before there was time for reflective thought; (3) the statement must have been made while the person was under the stress of excitement caused by the startling event. Smith v. State, App. 4 Dist., 186 So.3d 1056 (2016); Taylor v. State, App. 5 Dist., 146 So.3d 113 (2014); Brandon v. State, App. 1 Dist., 138 So.3d 1150 (2014); Rodriguez v. State, App. 2 Dist., 9 So.3d 745 (2009); Monfiston v. State, App. 4 Dist., 924 So.2d 61 (2006); Blandenburg v. State, App. 1 Dist., 890 So.2d 267 (2004); Lopez v. State, App. 1 Dist., 888 So.2d 693 (2004); Tucker v. State, App. 2 Dist., 884 So.2d 168 (2004); Harmon v. State, App. 5 Dist., 854 So.2d 697 (2003); Phillips v. State, App. 3 Dist., 816 So.2d 161 (2002). If enough time had elapsed between your accident and your statements to the police that you had time for reflective thought, then your statements will not be considered excited utterances and will be excluded from trial as hearsay.

Where the time between the event and the statement is long enough to permit reflective thought, the statement will be excluded as an excited utterance unless there is evidence that the declarant did not in fact engage in a reflective thought process. Browne v. State, App. 4 Dist., 132 So.3d 312 (2014); Davis v. State, 121 So.3d 462 (2013); Montano v. State, App. 4 Dist., 846 So.2d 677; Hudson v. State, 992 So.2d 96 (2008). J.A.S. v. State, App. 2 Dist., 920 So.2d 759 (2006); Rivera v. State, App. 4 Dist., 718 So.2d 856 (1998). State v. Skolar, App. 5 Dist., 692 So.2d 309 (1997). A hearsay statement made long after occurrence of startling event is not admissible as an excited utterance, even though declarant once again becomes excited in course of telling about occurrence. State v. Jano, 524 So.2d 660 (1988). Victim’s hearsay statement to police officer nearly four hours after defendant allegedly broke her spine was not admissible as an excited utterance, although victim was in a paraplegic condition and was crying as she spoke to officer; sufficient time elapsed for victim to have engaged in reflective thought. Strong v. State, App. 3 Dist., 947 So.2d 552 (2006). An officer’s testimony as to what the victim told her was not admissible under excited utterance exception to hearsay rule because sufficient time had passed to allow the victim the reflect on what had transpired; upon her release, the victim went to a neighbor’s house, used the phone, called a cab, and was driven to the police station to retrieve her car, she had been at the police station being attended to by paramedics for ten to fifteen minutes before the officer spoke with her, her statement was made in a narrative form, and all of these factors indicated that the victim had time to reflect. Bienaime v. State, App. 4 Dist., 45 So.3d 804 (2010). Hearsay testimony of sole witness, a police officer, was insufficient to support revocation of defendant’s parole on basis of alleged battery against his girlfriend; evidence to support Parole Commission’s finding of guilt consisted of officer’s recitation of girlfriend’s police statement, and statement neither fell within excited utterance nor spontaneous statement exception to hearsay rule, as at least 20 minutes had passed before girlfriend had made her statement, which was ample time for her to engage in a reflective thought process, and record was otherwise devoid of any indication that she remained under stress of the alleged event and had not regained her composure by the time she spoke to the officer. Merritt v. Crosby, App. 1 Dist., 893 So. 2d 598 (2005).

Further, a statement in the form of a narrative of the events in and of itself indicates that the victim is reflecting upon the events and thus is not an excited utterance. Strong v. State, App. 3 Dist., 947 So.2d 552 (2006). A narrative of a past event or a statement in reply to questions from a law enforcement officer are generally not considered spontaneous statements, for purposes of the excited-utterance exception to the hearsay rule. J.A.S. v. State, App. 2 Dist., 920 So.2d 759 (2006).

In addition, even if the Court finds that your statements made to the police were excited utterances, they should still be protected by Florida’s Accident Report Privilege. Florida Statute 316.066 (titled “Written reports of crashes”) reads, “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.” Florida Statute 316.066. Although accident reports are required only of the operators of vehicles and officers investigating accidents, it is settled that the privilege of the statute extends to all persons “involved” in accidents in some way. Wise v. W.U. Telegraph Co., Fla.App. 1st District, 177 So.2d 765 (1965); Williams v. Scott, Fla.App., 153 So.2d 18 (1963).

Further, in order for a statement to be privileged as accident report, it is not necessary that it be given to the investigating officer, be given at scene of accident, or be used in subsequently filed report of accident. Nash Miami Motors, Inc. v. Ellsworth, App. 3 Dist., 129 So.2d 704 (1961).

Therefore, if you are the driver of a vehicle involved in an accident which caused injury, death or property damage, you are actually required to talk to the police. Nevertheless, once you’ve done so, the defense in your case should not be able to use your statements against you in Court.