In any driving under the influence of alcohol or drugs (DUI) case in Florida, the state has to prove that the defendant was actually driving, or in actual physical control of, the vehicle. That seems obvious, but it may be problematic for the state in situations where the police respond to an accident and the drivers and others are out of the vehicles at the time. Accidents happen quickly, and sometimes, no one actually sees who is driving. Then, one may think it is as simple as the police officer asking who was driving. However, the initial discussion between the police officer and the driver about the accident is often inadmissible in a criminal case for DUI.
This is referred to as the Florida accident report privilege. This Florida law says that a driver is required to tell the police what happened after an accident. However, because this requirement affects a person’s right to remain silent if there is possibly criminal activity involved, any statements the driver makes about the accident during the accident investigation phase are not admissible in a criminal case. When the state cannot use the statement by the driver that he/she was driving the vehicle, the state may have a very hard time actually proving the suspect was driving a vehicle.
Even where the statement that a suspect was driving is not protected by the accident report privilege, the statement is still not admissible in a DUI trial unless and until the state can prove that a crime was committed by substantial evidence independent of the statement. In other words, if there is insufficient evidence to prove that the suspect may have committed a DUI and the suspect then makes incriminating statements about committing a DUI, that statement will not be admissible in a DUI trial. So, before such a statement can be used against a defendant in a DUI trial, the state must have other evidence that he/she committed the crime. Going back to the original point, when an accident occurs and the police show up after the fact, a suspect’s statement may be thrown out of a criminal trial if there are no solid witnesses or other evidence establishing that a DUI was committed.