Department of Highway Safety and Motor Vehicles v. Corbin, 87-324

• Decision Date: 17 June 1988
• Docket Number: No. 87-324,87-324
• Citation: 13 Fla. L. Weekly 1442,527 So.2d 868
• Parties: 13 Fla. L. Weekly 1442 DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Appellant, v. Steven A. CORBIN, Appellee.
• Court: Florida District Court of Appeals

Page 868

527 So.2d 868

13 Fla. L. Weekly 1442

DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Appellant, v. Steven A. CORBIN, Appellee.

No. 87-324.

District Court of Appeal of Florida,

First District.

June 17, 1988.

Rehearing Denied July 25, 1988.

Enoch J. Whitney, Gen. Counsel, Dept. of Highway Safety and Motor Vehicles, Tallahassee, for appellant.

Robert A. Pell, Asst. Gen. Counsel, Florida Police Benevolent Ass'n, Inc., Tallahassee, for appellee.

SMITH, Chief Judge.

Appellant, Department of Highway Safety and Motor Vehicles (agency), seeks review of a final order entered by the Public Employees Relations Commission (PERC), vacating the eight-hour suspension of Steven A. Corbin, a state highway patrol trooper, and awarding him a reasonable attorney's fee and costs. In this case we are asked to determine whether the hearing officer and PERC correctly applied the "accident report privilege," section 316.066, Florida Statutes (1986 Supp.), to bar use of the trooper's report of his own accident against him in disciplinary proceedings by the agency. We affirm.

On August 2, 1986, at approximately 5:00 a.m., Corbin was travelling in his patrol car east at approximately 55 mph in a 55 mph speed zone on U.S. Highway 90 near Quincy when he came upon a large cardboard box lying in the center of his path. In swerving to avoid collision with the box, he lost control of his vehicle, which eventually came to rest against a utility pole and advertising sign. No other cars were involved in the accident, and Corbin was not injured, but there was approximately $4,000 in property damage to the vehicle, utility pole, and advertising sign. Except for Corbin, there were no eyewitnesses to the accident.

Lieutenant Sexton investigated the accident and filed a Florida Accident Report. Based solely on information obtained at the scene of the accident from Corbin, the agency concluded that he had caused the automobile accident by driving too fast in foggy weather and subsequently suspended him.

Thereafter, Corbin requested a hearing before PERC at which, over objection, he invoked the accident report privilege. The agency's case was based almost exclusively on statements allegedly made by Corbin at the scene of the accident which he denied making at the hearing. Corbin testified that the accident occurred while he was in the midst of a heavy patch of fog which caught him by surprise as he had not seen any other fog that morning. According to Sexton's proffered testimony, Corbin had told him that it was very foggy in patches on Highway 90 and throughout the county that morning.

Corbin prevailed before both the hearing officer and PERC. On appeal, the agency asserts that it was error to permit Corbin to invoke the accident report privilege.

Section 316.066, Florida Statutes (1986 Supp.), requires the driver of a vehicle involved in an accident resulting in bodily injury, death, or property damage totalling $100 or more to forward within five days a written report of the accident to the Department of Highway Safety and Motor Vehicles. This requirement is excused when the investigating officer himself makes a written report of the accident. As to such report, section 316.066(4) provides in pertinent part:

Each accident report made by a person involved in an accident shall be without prejudice to the individual so reporting and shall be for the confidential use of the department or other state agencies having use of the records for accident prevention purposes,.... No such report shall be used as evidence in any trial, civil or criminal, arising out of an accident,....

In its final order vacating appellee's eight-hour suspension, PERC responded in the following manner to appellant's argument that the above privilege should not apply in an administrative hearing:

We reluctantly disagree with the Agency. We do not believe the Legislature intended the accident report privilege to be applied to the factual setting at issue in this case. Moreover, a different result may well have been reached by the hearing officer and the Commission had the accident report and Corbin's related statements been admitted for consideration. Unfortunately, we see no way to avoid the application of the Model Rule, Florida Administrative Code Rule 28-5.304, which specifically provides that "the rules of privilege shall be effective to the same extent that they are now or hereafter may be recognized in Civil Actions." In the absence of a specific rule on the subject, this Commission is required to apply the Model Rule and therefore to apply the accident report privilege to this case.

In its first issue on appeal, the agency asserts that PERC "erred in concluding that the accident report privilege is applicable to an administrative review of an employee disciplinary action." However, PERC's order is not predicated on its interpretation of the accident report privilege, but rather on its duty to apply Model Rule 28-5.304. We agree with PERC that under the provisions of section 120.54(10), Florida Statutes (1986 Supp.), it was obligated to apply the above model rule in the absence of its own rule on the subject. This section states in pertinent part that "the appropriate model rules shall be the rules of procedure for each agency subject to this act to the extent that each agency does not adopt a specific rule of procedure covering the subject matter contained in the model rules applicable to that agency." See also Citizens of Florida v. Mayo, 357 So.2d 731 (Fla.1978); Broward County Classroom Teachers Ass'n, Inc. v. Public Emp. Relations Commission, 331 So.2d 342 (Fla. 1st DCA 1976), cert. den., 341 So.2d 1080 (Fla.1976); and National Advanced Systems Corp. v. School Board of Orange County, 397 So.2d 1185 (Fla. 5th DCA 1981). We therefore affirm PERC's order to the extent that it is based on its duty to apply Model Rule 28-5.304, Florida Administrative Code.

We note that the agency has not challenged the validity of Model Rule 28-5.304, either below or on appeal, and neither will we address the issue. However, we are compelled to respond to arguments generated by PERC's statement in its order, with which the agency is in accord, that it "[did] not believe the Legislature intended the accident report privilege to be applied to the factual setting at issue in this case." Initially we note that the hearing officer presented a well-reasoned analysis for concluding that the privilege was applicable in the present case and that PERC's contrary statement was made gratuitously and merely in passing, in light of its determination that the case was controlled by Model Rule 28-5.304.

The purpose of the accident report privilege contained in section 316.066(4) is to encourage people to make a true report of the accident in order to facilitate the ascertainment of the cause of accidents, thus furthering the state's ultimate goal of making the highways safer for all of society. State v. Coffey, 212 So.2d 632 (Fla.1968), receded from on other grounds, Brackin v. Boles, 452 So.2d 540 (Fla.1984), and Wise v. Western Union Telegraph Company, 177 So.2d 765 (Fla. 1st DCA 1965).

It is a well-established principle of constitutional law that a person cannot be compelled to testify against himself unless he has been granted immunity from federal and state use of the compelled testimony or its fruits in connection with a criminal prosecution against him. Gardner v. Broderick, 392 U.S. 273, 20 L.Ed.2d 1082, 88 S.Ct. 1913 (1968). Section 316.066 compels the driver of an automobile involved in an accident to provide potentially self-incriminating testimony as to the circumstances surrounding the accident, but it also immunizes the testimony from subsequent use in a criminal prosecution against the driver. If the protection provided in section 316.066(4) was no broader than the privilege against self-incrimination, we would be persuaded by appellant's argument. However, the coerced testimony...