What do you think the cops think about someone leaving the scene of an accident in Orlando?
First, they assume the fleeing driver is drunk.
Second, they assume the fleeing driver has drugs in the car.
Either way, notice the problem here? For the prosecutor and the judge, citizens who are accused of leaving the scene of an accident (LSOA) are trying to get away with some other, more serious, crime. And that’s why these cases can be more difficult to defend than people expect. Everyone is looking at the driver like “Was this person drunk?” “Did this driver have a truck full of heroin?” “Was there a dead body in the trunk?” Sounds outrageous, but this is why the punishments for LSOA can be so severe. They think you got away with something.
The truth is not as interesting as law enforcement’s fantasies. Some people just panic. Nothing more, nothing less. No drinking and driving. No drugs in the car. No suspended license. Just a bad decision, and we’ve all made a bad decision or two.
The good news is, these cases are beatable.
Medical Attention Defense to Leaving the Scene of an Accident
Whenever there is an auto accident in Florida, our laws require those involved in the accident to follow the procedures set forth in Sections 316.027, 316.061, and 316.062 of the Florida Statutes (I’ll bore you with these statutory requirements later).
The purpose of these laws is to assure that any injured person is rendered aid and that all pertinent information concerning insurance and names of those involved in the accident is exchanged by the parties. Keep in mind that a conviction for Leaving the Scene of an Accident does not allow the court to impose restitution for the damages caused by the accident, because the fact that a defendant left the scene does not mean that the defendant actually “caused” the damages or accident. That is a separate issue, often left to the insurance companies to decide.
It’s best to start with my favorite defense to this crime, and that involves situations where the driver is physically unable to make a report as required by law. How can you fault someone for leaving the scene when they were going to get medical attention? Your health comes first! This defense is found in Section 316.064 of the Florida Statutes, and it reads as follows:
- A crash report is not required under this chapter from any person who is physically incapable of making a report during the period of such incapacity.
- Whenever the driver of a vehicle is physically incapable of making an immediate or a written report of a crash, as required in ss. 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.
- Whenever the driver is physically incapable of making a written report of a crash as required in this chapter, then the owner of the vehicle involved in the crash shall, within 10 days after the crash, make such report not made by the driver.
- A violation of this section is a noncriminal traffic infraction, punishable as a non-moving violation as provided in chapter 318.
This “unable to report” defense may be available under any level of incapacity, so the fact that a driver was not brought to the hospital by ambulance does not mean there is no defense. After all, who can afford an emergency room these days? A friend may have taken the driver to a CentraCare Urgent Care type facility that, should we be able to provide documentation that such a visit occurred, could aid in a defense.
Proof of Damage in a Leaving the Scene of an Accident Case
This is my second favorite defense, and it creeps up on you, so watch carefully. Everyone thinks that an accident is easy to prove, because the cops arrive at the scene and discover the defendant’s car wrapped around a tree. And, of course, the driver is no where to be found. So, the police officers at the scene gather evidence, including pictures of the totaled car. Is this enough proof?
Well, in order to commit the crime of leaving the scene of an accident, there must be damage to someone else’s vehicle or property. That’s right. Damage to your own car doesn’t count. If you want to wreck your own car and leave the scene, that’s not a crime if the only damage is to your property. The crime occurs when the State can prove that there is damage to someone else’s vehicle or property.
In Powell v. State, the driver appealed his leaving the scene of an accident conviction because the only evidence presented was photographs of the damage to Powell’s vehicle. There was also testimony that he crashed into a barricade or beam, but there wasn’t any evidence that the barricade was damaged in any way. Because there was no evidence of damage to whatever Powell’s vehicle hit, his conviction for leaving the scene was thrown out.
Different Severity Levels for Leaving the Scene of an Accident
Now, let’s break down the three types situations that can lead to an arrest for Leaving the Scene of an Accident. Starting with the least serious, leaving the scene of an accident with damage done to an unattended vehicle is only a second degree misdemeanor punishable by up to 60 days in jail and a $500 fine, and it’s found in Section 316.063 of the Florida Statutes. Thus, the best defense to a case like this is to show proof that the law, listed below, was complied with by attaching the required information in a conspicuous place on the vehicle. For more details on this type of defense, see my article “When Is Leaving the Scene of an Accident not a Crime?“316.063.
Duty Upon Damaging Unattended Vehicle or Other Property
- The driver of any vehicle which collides with, or is involved in a crash with, any vehicle or other property which is unattended, resulting in any damage to such other vehicle or property, shall immediately stop and shall then and there either locate and notify the operator or owner of the vehicle or other property of the driver’s name and address and the registration number of the vehicle he or she is driving, or shall attach securely in a conspicuous place in or on the vehicle or other property a written notice giving the driver’s name and address and the registration number of the vehicle he or she is driving, and shall without unnecessary delay notify the nearest office of a duly authorized police authority. Any person who fails to comply with this subsection commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
- Every such stop shall be made without obstructing traffic more than is necessary. If a damaged vehicle is obstructing traffic, the driver shall make every reasonable effort to move the vehicle or have it moved so as not to obstruct the regular flow of traffic. A violation of this subsection is a noncriminal traffic infraction, punishable as a nonmoving violation as provided in chapter 318.
- The law enforcement officer at the scene of a crash required to be reported in accordance with the provisions of subsection (1) or the law enforcement officer receiving a report by a driver as required by subsection (1) shall, if part or any of the property damaged is a fence or other structure used to house or contain livestock, promptly make a reasonable effort to notify the owner, occupant, or agent of this damage.
As you can see from the above, you actually can legally leave the scene of an accident, so long as two conditions are present. First, the accident must be with an unattended vehicle or unattended property. Second, you must leave all kinds of information, like your name, address, VIN number, contact info, and you must contact law enforcement as well.
Section 316.061, entitled “Crashes involving damage to vehicle or property” reads pretty much the same way as 316.063 listed above, except it pertains to accidents with attended vehicles. This is the classic leaving the scene of an accident situation, in which you’ve got another car–occupied this time–or you’ve got property which is attended. Either way, its a misdemeanor to leave the scene. Now, the penalties can escalate when the accident has created more than just property damage.
Yes, you can turn a run of the mill misdemeanor into a felony if someone was injured as a result of the accident. This crime is more complex than it may appear, punishable as a third degree felony on up to a first degree felony requiring a mandatory prison sentence, all depending upon the circumstances. For example, if someone died as a result of the accident, the driver that left the scene must serve a minimum prison sentence of two years. Naturally, most judges will want more prison than that, but two years is the lowest permissible sentence (actually, we have some ways around this, but that’s a discussion for another day!).
And last but not least, what discussion of Leaving the Scene would be complete without mentioning our duty to give information and render aid. Yes, there’s a moral duty to help our fellow man. But there’s also a statutory duty, found under 316.062, entitled “Duty to give information and render aid”. Violating this statute will only result in a traffic infraction punishable as a nonmoving violation. Check it out below:316.062.
Duty to Give Information and Render Aid
- The driver of any vehicle involved in a crash resulting in injury to or death of any person or damage to any vehicle or other property which is driven or attended by any person shall give his or her name, address, and the registration number of the vehicle he or she is driving, and shall upon request and if available exhibit his or her license or permit to drive, to any person injured in such crash or to the driver or occupant of or person attending any vehicle or other property damaged in the crash and shall give such information and, upon request, exhibit such license or permit to any police officer at the scene of the crash or who is investigating the crash and shall render to any person injured in the crash reasonable assistance, including the carrying, or the making of arrangements for the carrying, of such person to a physician, surgeon, or hospital for medical or surgical treatment if it is apparent that treatment is necessary, or if such carrying is requested by the injured person.
- In the event none of the persons specified are in condition to receive the information to which they otherwise would be entitled under subsection (1), and no police officer is present, the driver of any vehicle involved in such crash, after fulfilling all other requirements of s. 316.027 and subsection (1), insofar as possible on his or her part to be performed, shall forthwith report the crash to the nearest office of a duly authorized police authority and submit thereto the information specified in subsection (1).
- The statutory duty of a person to make a report or give information to a law enforcement officer making a written report relating to a crash shall not be construed as extending to information which would violate the privilege of such person against self-incrimination.
- A violation of this section is a noncriminal traffic infraction, punishable as a nonmoving violation as provided in chapter 318.