In order to successfully prosecute a defendant for the crime of DUI (also referred to as driving under the influence, driving while intoxicated, DWI or drunk driving), the State has to prove that the defendant was the actual person driving the vehicle. In most DUI cases, that is obvious because the DUI investigation and arrest result from an alleged traffic violation committed by the defendant who is in the process of driving the vehicle. However, many DUI investigations and arrests result from traffic crashes where the police officer arrives to the scene after the crash. In this case, the police officer does not have personal knowledge that the defendant was driving. If there are other people involved in the crash, they may or may not be able to say that the defendant was driving depending on what they were able to see, whether they were seriously injured or other factors. In a one vehicle crash, it is likely that there are no witnesses to testify as to who was driving other than the defendant him/herself.
In Florida, we have what is called the accident report privilege. This law provides that when a person is involved in a traffic crash in Florida, he/she is required to talk to the police and say what happened in the crash. However, what that driver says cannot be used against the driver in a criminal case, such as a DUI case, or a civil case for personal injuries or wrongful death. So, if the only evidence a police officer and the State have in a DUI case to prove that the defendant was the one driving is the defendant’s own statement that he/she was driving, that cannot be used against the defendant to prove the DUI case.
In a DUI case in Florida, the fact that the defendant was driving seems like an obvious element for the State to prove. However, in some cases where an accident occurred, it can be a very difficult element for the State to prove and one that can result in the DUI charges being dropped.