IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PINELLAS COUNTY, FLORIDA
APPELLATE DIVISION

JOHN S. KWIATKOWSKI,

            Petitioner,

vs.                                                                                            Appeal No. 01-2285-CI-88A

STATE OF FLORIDA, DEPT. OF HIGHWAY SAFETY & MOTOR VEHICLES,

            Respondent

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ORDER DENYING PETITION FOR WRIT OF CERTIORARI

                Upon consideration of the Petition for a Writ of Certiorari and the Response thereto, the Court finds that the Petitioner was involved in a two-vehicle accident on December 31, 2000.  The only witness to the accident was the driver or the other vehicle involved in the accident, Karen Louise Perussa.  During the investigation of the accident, Ms. Perussa stated to the investigating officer that the Petitioner was the driver of the other car and that she thought Petitioner was drunk.   Petitioner argues that the Department of Motor Vehicles improperly failed to invalidate the Petitioner's suspension because Ms. Perussa's statements are subject to the accident report privilege.  Section 316.066(4), Florida Statutes, states as follows:

Except as specified in this subsection, 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.  No such report or statement shall be used as evidence in any trial, civil or criminal.  However, subject to the applicable rules evidence, a law enforcement officer at a criminal trial may testify as to any statement made to the officer by the person involved in the crash if that person's privilege against self-incrimination is not violated. 

            In Brackin v. Boles, 452 So. 2d 540, 544 (Fla. 1984), the Florida Supreme Court stated:

The statute only prohibits the use of communications 'made by persons involved in accidents' in order to avoid a fifth amendment violation. . . .  [The] purpose of the statute is to clothe with statutory immunity only such statements and communications as the driver, owner, or occupant of a vehicle is compelled to make in order to comply with his or her statutory duty under section 316.066(1) and (2).

            In State v. Shepard, 658 So. 2d 611 (Fla. 2d DCA 1995), Ms. Shepard told the officer that she was the driver of the vehicle that hit the victim, and the court held that her statement, which was made during the accident investigation, was not admissible.

            The Petitioner cited several cases to support his position.  In Perez v. State, 630 So. 2d 1231 (Fla. 2d DCA 1994), Mr. Perez was the driver of a car involved in an accident.  When the investigating officer arrived at the scene, Mr. Perez made spontaneous incriminating statements against himself.  In Salama v. McGregor, 656 So. 2d 215 (Fla. 5th DCA 1995), Mr. McGregor made the statement that was being used against Mr. McGregor to the investigating officer.  In Dept. of Highway Safety & Motor Vehicles v. Perry, 702 So. 2d 294 (Fla. 5th DCA 1997), the court held that the driver's admission that he was a driver of one of the two cars involved in the accident was inadmissible in the administrative hearing under accident report privilege.

            In this case, the Petitioner did not make the incriminating statements.  Karen Louise Perussa, the driver of the other vehicle, told the officer that the Petitioner was the driver of the car that hit her vehicle and that she thought the Petitioner was drunk.  Her statements are not admissions by the Petitioner in violation of his fifth amendment privilege against self-incrimination. Her statements do not violate her own privilege against self-incrimination.  It is, therefore,

            ORDERED that the Petition for a Writ of Certiorari is denied.

            DONE AND ORDERED in chambers at Clearwater, Pinellas County, Florida, on this 18th day of June 2001.

___________________________
W. DOUGLAS BAIRD
Circuit Judge, Appellate Division

 

Copies Furnished To:

J. Kevin Hayslett, Esquire
250 Belcher Road North, Suite 102
Clearwater, FL 34625
Attorney for Petitioner

Kathy A. Jimenez, Esquire
Assistant General Counsel
Dept. of Hwy. Safety & Motor Vehicles
2515 W. Flagler Street
Miami, FL 33135
Attorney for Respondent