Leaving the Scene of an Accident - Hit & Run Offenses in Florida

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When involved in a traffic crash, a driver has a duty to remain at the scene, provide certain information, and render aid if necessary. A violation of these requirements is a criminal offense, the severity of which depends on whether property damage, personal injury, or death result from the accident.

A person's duty to give information and render aid, when involved in a traffic accident, is set forth in Florida Statutes section 316.062. In accordance with its provisions, the driver of any vehicle involved in a crash, that results in either (1) injury to another person; (2) death of another person; or (3) damage to any vehicle or other property, driven or attended by any person, must
provide his or her name, address, and registration number of the vehicle he or she is driving.

If requested, and if available, the driver must also produce his or her driver's license to either the other driver, other vehicle occupant, or a police officer who is conducting the crash investigation. Florida law also requires the driver to render, to any injured person, "reasonable assistance" if the injured person requests it. This includes transporting the injured person to a hospital for medical treatment, or making arrangements for such transportation. If no persons are in a condition to receive such information (where, for example, they are unconscious), and no police officer is present, the driver of any vehicle involved in a crash is required to report the crash to the nearest police station, and provide the aforementioned information. A violation of these requirements constitutes a non-criminal traffic infraction.

Where the accident involves only property damage, and the driver fails to (1) provide the required information as set forth above; and (2) leaves the scene of the accident, he or she is guilty of a second degree misdemeanor. In Florida, a second degree misdemeanor is punishable by up to sixty days in the county jail, and/or six months of probation, but the total sentence cannot exceed six months (in other words, the court cannot sentence the accused person to sixty days in jail to be followed by a six month probation sentence upon release). In addition to any fines and court costs imposed at the time of sentencing, the court is required to add $5.00, to be deposited in the Emergency Medical Services Trust Fund.

In accordance with Florida law, the court cannot require the accused person to pay restitution in situations involving leaving the scene of an accident with only property damage. However, where the accused is willing to pay for damages to the other vehicle, despite the fact that it cannot be required, the state is usually willing to amend the charge from a second degree misdemeanor (a criminal offense) to a traffic infraction (which is non-criminal). For a person with no criminal history, this can be of significant benefit, and for obvious reasons. In addition to avoiding a conviction, or having to enter a plea to a criminal offense, an infraction will carry a lesser fine amount and the person will avoid any sort of probationary sentence (a person cannot be placed on probation for a traffic infraction in Florida).

Where another individual is injured in the crash, and the driver fails to (1) provide the required information and/or render aid; and (2) leaves the scene of the accident, he or she commits a felony of the third degree. A third degree felony is punishable by up to five years in state prison. If death of another person results, under the same set of circumstances, the driver commits a felony of the first degree. A first degree felony is punishable by up to thirty years in state prison. These are the maximum penalties authorized by law. As with any felony case in Florida, sentencing guidelines apply, which will determine the minimum sentence that can lawfully be imposed (in the absence of a downward guideline departure). Sentencing in Florida can be complicated and guideline issues are beyond the scope of this article. An experienced criminal defense attorney can provide additional details and answer specific questions as it relates to sentencing matters.

Upon arrest for leaving the scene of an accident involving death, the person must be held in custody, without bail, until he or she is brought before a judge, if the person has a prior conviction for (1) leaving the scene of an accident involving injury or death; (2) leaving the scene of an accident involving property damage; (3) racing on highways (in violation of Florida statute section 316.191); (4) DUI; or (5) a felony driving while license suspended or revoked offense.

In cases of leaving the scene of an accident involving death, the person may be required by the court to perform 120 hours of community service in a trauma center or hospital as a condition of his or her sentence. If it can be proven that the person committed the offense while under the influence of alcohol or chemical or controlled substances, in violation of section 316.193 (Florida's DUI statute), the court must impose a minimum mandatory term of imprisonment of two years.

Whether the offense results in death or personal injury, the court is required to revoke the accused person's driver's license upon conviction. Unlike situations involving property damage, the court is also required to order the accused person to make restitution to any victims for damage and/or loss that results from the accident.

The most common defense in this type of case is lack of ID. Here, the accused person asserts that he or she was not the driver of the vehicle at the time it was involved in the accident. In instances where witnesses get only the tag number of the suspect vehicle, and cannot positively identify the driver, this may present a viable defense. Just because a particular vehicle was involved, does not mean a particular person was driving it. The accused person may want to present alibi witnesses to bolster his or her position. Often times, lack of ID and alibi work in tandem and, under the right circumstances, can be very effective.

Obviously, where one or more persons can identify the driver, an ID defense may not be as effective. Also, an admission of guilt to law enforcement may foreclose on the prospect of an otherwise viable ID defense. Where the accused makes an admission, the person's attorney should carefully examine the circumstances under which the statement was made. In criminal cases involing a traffic crash (including, for example, DUI, Reckless Driving, Racing on Highways, and Leaving the Scene of an Accident) police will conduct both a civil crash investigation and a criminal investigation. As a general principle, inculpatory statements made during the civil portion of the investigation are not admissible in the criminal proceeding.

Once the civil portion of the investigation has concluded, however, the police officer(s) investigating the matter are required to "switch hats". This means that the officer(s) must inform the accused person that the civil investigation has concluded and the criminal investigation is commencing. In addition, the officer must read the accused his or her Miranda Rights (where the accused person is not free to leave). If the officer fails to follow these protocols, admissions of guilt elicited during the civil investigation will be excluded from the criminal case. I have seen this happen as both a Pinellas county state prosecutor and a St. Petersburg criminal defense attorney. When it occurs, the accused person benefits - and sometimes tremendously. There is, however, an exception to this general principle in cases of leaving the scene of an accident. There are a number of cases in Florida wherein the courts have held that the driver of a hit and run is not entitled to the confidentiality privilege of section 316.066(4), Florida Statutes.

Where it appears the state can prove each element of the charge, effective plea negotiations become paramount. Of course, each case is different and what can be accomplished in one case may not necessarily be accomplished in another. Often times, the outcome will depend on the nature and extent of the victim's injuries, the existence of aggravating factors (such as the use of drugs or alcohol at the time of the incident), the accused person's prior record (if any), victim input, and the existence of any lawful guideline departure bases (where the person is scoring mandatory prison). For some, taking the case to trial may present the most viable option for a favorable outcome but this decision is one that should be carefully considered, especially in felony cases.

As with most criminal cases, there is usually much that can be done to mitigate the impact of a leaving the scene of an accident charge, particularly when the attorney is retained early on. If you have been arrested or charged with leaving the scene, or think you might be, you should speak to an attorney with experience in these types of cases as soon as possible.

ABOUT THE AUTHOR: Donald J. Kilfin
Donald J. Kilfin is a former Pinellas county state prosecutor. He owns and operates The Kilfin Law Firm, P.C., a Tampa Bay area DUI and criminal defense firm representing clients in St. Petersburg, Clearwater, Tampa, New Port Richey, Dade City, and Bradenton.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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