        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                            KEVIN STEWART,
                               Appellant,

                                     v.

DEAN D. DRALEAUS, CHRISTOPHER REAGLE, and ROBIN VINCENT,
                        Appellees.

              Nos. 4D15-2320, 4D15-2321 and 4D15-2322

                              [July 26, 2017]

   Consolidated appeals and cross-appeal from the Circuit Court for the
Nineteenth Judicial Circuit, St. Lucie County; James Midelis, Senior
Judge; L.T. Case Nos. 562007CA001978, 562007CA003717 and
562008CA000556.

   Diane H. Tutt of Conroy Simberg, Hollywood, for appellant.

   Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm
Beach, and William Zoeller of Schuler, Halvorson, Weisser & Zoeller,
P.A., West Palm Beach, for appellee.

CIKLIN, J.

   Kevin Stewart, the defendant below, timely appeals a final judgment
in a personal injury action entered in favor of the three plaintiffs, Robin
Vincent, Christopher Reagle, and Dean Draleaus. The action was based
on a motorcycle accident in which the defendant is alleged to have hit the
plaintiffs’ motorcycles. The defendant argues the trial court erred in
precluding three types of evidence: a witness’s statement to an
investigating police officer, alcohol consumption by the plaintiffs, and a
motorcycle license violation by one of the plaintiffs. We agree on all three
points, and we reverse and remand for a new trial.

                                 I. Facts

   On the evening of the motorcycle accident, which occurred in 2006,
the defendant was driving a Chevrolet Camaro. Draleaus and Reagle
were each driving a motorcycle and Vincent was Reagle’s passenger. At
that time, Reagle had a temporary motorcycle license that did not permit
him to carry a passenger. Prior to the accident, the plaintiffs stopped at
a restaurant and then at a bar. They were heading home when the
accident occurred around 11:18 p.m.

   In the proceedings below, liability was hotly contested and the
defendant alleged comparative negligence. According to the plaintiffs’
theory of the case, the defendant revved his engine at them and tried to
race them. After pacing the motorcycles for a distance and swerving into
their lane twice, the defendant hit Reagle’s motorcycle (upon which
Vincent was a passenger), which then ran into Draleaus’s motorcycle,
and then drove away.        The plaintiffs survived the accident, but
underwent medical treatment for significant injuries.

   The defendant’s version of events was dramatically different. The
defendant admitted to revving his engine in response to the motorcycles,
but he denied exceeding the speed limit or racing or hitting the
motorcycles. He testified that he saw Reagle attempt to turn right but
instead turn directly into Draleaus’s path, which he opined, caused the
motorcycles to collide and hit a curb and a telephone pole. The
defendant said he pulled over and got out of his car, but then left after
seeing that other people had stopped to render aid.

    The independent witness testimony presented at trial was similarly
inconsistent.    One witness testified that the motorcycles and the
defendant’s Camaro were traveling at one hundred miles per hour and
that the accident occurred while the vehicle and the two motorcycles
were close to each another. Another witness, who was riding with the
aforementioned witness, estimated that the vehicles were traveling fifty-
five to sixty miles per hour and stated that the Camaro was nowhere
near the motorcycles when one of the motorcycle’s wheels began to
wobble and crash.

   Yet another witness (“minor accident witness”) was involved in a
fender bender shortly after the subject motorcycle accident. According to
her deposition testimony, which was admitted at trial, she did not see the
motorcycle accident because a truck was traveling in front of her, but
she saw the motorcycles speeding and weaving in and out of traffic
beforehand. When the truck turned onto an intersecting street, she saw
three people laying on the road and on the sidewalk. She had to swerve
to avoid them, at which point she hit a car that was pulled over to render
aid to the plaintiffs.

  Prior to trial, the parties moved in limine to obtain a ruling on the
admissibility of a prior inconsistent statement of the minor accident

                                    2
witness involved in her own accident, to the investigating law
enforcement officer. In that statement she said she saw the motorcycle
accident occur, and specifically that she saw one motorcycle move into
the other motorcycle’s lane and make contact with it. The parties also
sought pre-trial rulings on the admissibility of evidence that the plaintiffs
were drinking before the accident and that Reagle was violating a license
restriction at the time of the accident by carrying a passenger. The trial
court excluded all of the evidence. The jury ultimately found the
defendant 55% at fault and Reagle 45% at fault and the trial court
entered final judgment accordingly.

                                  II. Analysis

   On appeal, the defendant argues that the evidentiary rulings were
incorrect, since the excluded evidence was relevant, probative, and
supported by expert testimony where necessary. We agree.

   A. Accident Report Privilege

   First, we address the prior inconsistent statement of the witness who
had been involved in her own separate and minor accident. The trial
court excluded this testimony and evidence based on its interpretation of
the accident report privilege. Therefore, this is a question of law subject
to de novo review. See Sottilaro v. Figueroa, 86 So. 3d 505, 507-08 (Fla.
2d DCA 2012).

   The accident report privilege serves to exclude from evidence
statements made by a driver involved in an accident to a police officer for
the purpose of creating a crash report for that accident. McTevia v.
Schrag, 446 So. 2d 1183, 1184 (Fla. 4th DCA 1984). The privilege
derives from section 316.066, Florida Statutes (2006), which under
certain circumstances requires persons involved in an accident to
provide a report to law enforcement:

      (1) The driver of a vehicle which is in any manner involved in
      a crash resulting in bodily injury to or death of any person or
      damage to any vehicle or other property in an apparent
      amount of at least $500 shall, within 10 days after the
      crash, forward a written report of such crash to the
      department or traffic records center. However, when the
      investigating officer has made a written report of the crash
      pursuant to paragraph (3)(a), no written report need be
      forwarded to the department or traffic records center by the
      driver.

                                       3
      ....

      (3)(a) Every law enforcement officer who in the regular course
      of duty investigates a motor vehicle crash:

      1. Which crash resulted in death or personal injury shall,
      within 10 days after completing the investigation, forward a
      written report of the crash to the department or traffic
      records center.

      ....

      (4) 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 of 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. . . .

(Emphasis added).

    “[T]he 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 . . . .” Brackin v. Boles, 452 So. 2d 540, 544 (Fla. 1984).
The assertion of the privilege is not limited to the declarant; it “extends to
all persons within its ambit, those ‘involved’ in the accident[.]” Hoctor ex
rel. Hoctor v. Tucker, 432 So. 2d 1352, 1353 (Fla. 5th DCA 1983).

    This immunity, however, is not extended to witnesses as they have no
obligation to provide such a statement. McTevia, 446 So. 2d at 1184-85.
In McTevia, the McTevias were involved in a car accident with the
defendant, Schrag. Id. at 1184. At the scene of the accident, the
McTevias’ friend, Epstein, told the investigating officer that he was
following the McTevias in his car but did not witness the accident. Id.
Two weeks later he went to the police station and told officers he had lied
previously, that he saw the accident, and that Schrag was on the wrong
side of the road at the time of the accident. Id.

                                      4
   At trial, the McTevias moved to preclude Epstein’s on-scene statement
on the basis of the accident report privilege under section 316.066(4).
Id. The trial court ultimately ruled the statement to be admissible. Id.
This court affirmed, explaining:

      This privilege inures only to those required to make the
      report. It does not apply to statements of other witnesses or
      persons who may volunteer information to the investigating
      officer. The privilege is constitutionally mandated because
      the statutes require a report under penalty of law and in
      certain instances the report could otherwise be in derogation
      of one’s Fifth Amendment rights. From the foregoing lessons
      it appears that Epstein was not required by law to report to
      the investigating officer; he was therefore not involved in the
      accident within the meaning of Section 316.066(4), Florida
      Statutes (1981).

Id. at 1184-85 (internal citations omitted); see also Sottilaro, 86 So. 3d at
509-11 (where witnesses told officer that decedent was looking down at
his phone and texting while crossing the highway, the witnesses’
statements were not inadmissible on the basis of the accident report
privilege because the witnesses were not involved in the accident and
were not required to make the statements); S.G.K. v. State, 657 So. 2d
1246, 1248 (Fla. 1st DCA 1995) (noting that section 316.066 does not
require witnesses to stay on the scene or report to officers). This court
has further explained, “The test to be applied in determining whether the
accident report privilege is applicable is whether the privilege against
self-incrimination was violated by requiring the person involved in the
accident to answer the questions posed.” Evans v. Hamilton, 885 So. 2d
950, 950-51 (Fla. 4th DCA 2004).

   In the proceedings below, the trial court determined that the fender
bender and the motorcycle accident were not separate accidents,
reasoning that the collisions were causally connected and were a
“continuous chain of events.” Since the minor accident witness was a
driver of a vehicle “involved in an accident,” the trial court reasoned that
this privilege applied.

   We find this conclusion to be erroneous. While it is true that the
accidents were, in some fashion, related, the accidents were separate.
Neither the minor accident witness nor the vehicle she struck collided
with the plaintiffs, their motorcycles, or any of the debris from their
accident. Further, the investigating officer who obtained the minor

                                     5
accident witness’s statement indicated in his proffered testimony that he
was investigating only the motorcycle accident, not the minor accident
witness’s fender bender, and that the fender bender was memorialized in
a separate accident report authored by a different officer.           Any
statements made to the other officer regarding the minor accident
witness’s own accident are privileged, but her Fifth Amendment rights
were not implicated in her statements to the officer about the motorcycle
accident. Consequently, the trial court erred in excluding evidence of her
statements.

   B. Evidence of Alcohol Consumption

   Second, we address the trial court’s ruling excluding evidence of the
plaintiffs’ pre-accident alcohol consumption.

   The evidence the defendant sought to introduce included (1)
admissions by two of the plaintiffs that they had been drinking prior to
the incident (the third incurred a head injury that left him unable to
recall most of the day’s events), (2) testimony of treating medical
personnel and witnesses who smelled alcohol on the plaintiffs, and (3)
testimony of an expert witness that even just one or two drinks may
significantly impair perception and reaction in the operation of a
motorcycle. The plaintiffs countered that evidence of impairment was
speculative, as Reagle and Draleaus’s blood had been drawn at 4:00 A.M.
the morning after the accident and no alcohol was detected, nor was
there any evidence of impairment such as slurred speech, bloodshot
eyes, or unsteadiness on feet. The trial court focused on the fact that
there was no evidence of retrograde extrapolation and that the blood
alcohol tests were negative. It excluded the evidence, concluding that the
potential prejudice to the plaintiffs outweighed the probative value of the
proffered evidence.

   We review the trial court’s determination on the admissibility of the
evidence for an abuse of discretion, which discretion is limited by the
rules of evidence. Pantoja v. State, 59 So. 3d 1092, 1095 (Fla. 2011).

   Relevant evidence is evidence tending to prove or disprove a material
fact and is generally admissible. §§ 90.401, 90.402, Fla. Stat. (2013).
“Relevant evidence is inadmissible if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of issues,
misleading the jury, or needless presentation of cumulative evidence.” §
90.403, Fla. Stat. (2013).

      In weighing the probative value against the unfair prejudice,

                                    6
      it is proper for the court to consider the need for the
      evidence; the tendency of the evidence to suggest an
      improper basis to the jury for resolving the matter, e.g., an
      emotional basis; the chain of inference necessary to establish
      the material fact; and the effectiveness of a limiting
      instruction.

Jones v. Alayon, 162 So. 3d 360, 365 (Fla. 4th DCA 2015) (quoting
Johnson v. State, 40 So. 3d 883, 886 (Fla. 4th DCA 2010)).

    This court has recognized the inflammatory effects of evidence of a
party’s alcohol use in the context of an action arising from a car
accident, and has held them inadmissible as unduly prejudicial where
liability is admitted. See Neering v. Johnson, 390 So. 2d 742, 744 (Fla.
4th DCA 1980). However, even when a defendant admits liability, where
comparative negligence is alleged, “the trier of fact must hear the ‘totality
of fault’ of each side,” i.e., the specific acts of negligence of each party.
Lenhart v. Basora, 100 So. 3d 1177, 1179 (Fla. 4th DCA 2012).

  Regardless, a plaintiff driver’s potential impairment is probative of
whether he caused or contributed to an accident:

         Whether or not a person is under the influence of
      intoxicating liquor to the extent that his or her normal
      faculties are impaired is a question of fact and should be
      determined by the jury when there is substantial evidence
      submitted on that question.

Seltzer v. Grine, 79 So. 2d 688, 689 (Fla. 1955); see also Flint v. State,
117 So. 2d 552, 556 (Fla. 2d DCA 1960) (holding evidence of appellant’s
consumption of alcohol prior to the accident was properly admitted in
trial for manslaughter by culpable negligence in operation of an
automobile because “ordinarily, persons under the influence of
intoxicants to any considerable degree, though not actually intoxicated or
drunk, are more apt to be heedless, reckless, and daring than when free
from such influence” (quoting Cannon v. State, 107 So. 360, 362 (Fla.
1926))).

   Here, the evidence of alcohol consumption on the evening of the
accident was material to the issue of comparative negligence and was not
speculative. Reagle admitted that he had two drinks between 7:30 and
10:30, which means that he could have been drinking forty-eight
minutes before the accident occurred at 11:18. Reagle’s motorcycle
passenger, Vincent, admitted she had been drinking, and a witness

                                     7
testified that she smelled alcohol on her. A responding officer smelled
alcohol on Draleaus.      Finally, the expert testified that even small
quantities of alcohol can impair a motorcycle operator’s perception and
reaction.

   This evidence conclusively established that at least some of the
plaintiffs were drinking prior to the accident and therefore properly
raised the issue as to whether the alcohol consumption was a
contributing factor in the accident, and thus whether plaintiffs were
under the influence to the extent that their faculties were impaired. This
was a question of fact for the jury to consider.

   Moreover, the weight of the evidence tending to prove the plaintiffs
were not impaired against the weight of the evidence of their alcohol
consumption is a factual determination reserved for the jury. See Tibbs
v. State, 397 So. 2d 1120, 1123 (Fla. 1981), aff’d, 457 U.S. 31 (1982) (“It
is a determination of the trier of fact that a greater amount of credible
evidence supports one side of an issue or cause than the other.”).

   In light of our determination that the trial court erred in excluding the
evidence of alcohol consumption, we direct that on remand, the
defendant should be permitted to pursue his defense under section
768.36, Florida Statutes (2006), which provides in pertinent part:

      (2) In any civil action, a plaintiff may not recover any
      damages for loss or injury to his or her person or property if
      the trier of fact finds that, at the time the plaintiff was
      injured:

      (a) The plaintiff was under the influence of any alcoholic
      beverage or drug to the extent that the plaintiff’s normal
      faculties were impaired or the plaintiff had a blood or breath
      alcohol level of 0.08 percent or higher; and

      (b) As a result of the influence of such alcoholic beverage or
      drug the plaintiff was more than 50 percent at fault for his or
      her own harm.

   According to the plain language of the statute, it is up to the “trier of
fact” to determine whether the plaintiffs’ normal faculties were impaired
and whether they were more than fifty percent at fault for their injuries.
Since Stewart should be allowed to present evidence on Reagle and
Draleaus’s alcohol consumption, it follows that he should be able to
present his section 768.36 defense with respect to these two plaintiffs.

                                     8
    C. Evidence of License Violation

   Third, we address the trial court’s exclusion of evidence that, at the
time of the accident, Reagle had not taken the required examination and
thus possessed only a temporary motorcycle license that did not allow
him to carry passengers. 1 The trial court ruled that the evidence was not
admissible because Reagle’s mere failure to take the requisite test and
obtain his permanent motorcycle license did not indicate negligence in
the subject accident, and thus the violation was irrelevant.

    We review the trial court’s ruling on the admissibility of the evidence
for an abuse of discretion. Pantoja, 59 So. 3d at 1095.

    In precluding the evidence of the license restriction violation, the trial
court relied on Brackin, 452 So. 2d at 542, in which the Florida Supreme
Court concluded that “a violation of the driver’s license law is admissible
if relevant to the issues in a cause” and further explained:

       Evidence is relevant if it tends to prove or disprove a material
       fact at issue. Hence a person’s violating a traffic regulation
       is admissible evidence only if it tends to prove that that
       person has negligently operated an automobile. Relevancy is
       usually inherently established when the traffic regulation
       which was violated concerns the manner in which an
       automobile was operated.          Relevancy is not so easily
       established when the traffic regulation which was violated
       concerns a licensing requirement.

          The vast majority of jurisdictions hold that a violation of a
       driver’s license law is not evidence of negligence in the
       absence of some causal connection between the violation
       and the injury. See Annot., 29 A.L.R.2d 963 (1953 & Supp.
       1981). This requirement of a causal connection for evidence
       of a violation to be admissible should not be confused with
       the proximate cause element of a tort action for negligence.
       The first is a determination of law made by a trial judge in
       deciding whether a person’s violating a driver’s license
       regulation is relevant.     Whether such a violation is a

1 Further,   Vincent knew of the restriction, since Reagle was pulled over for
weaving in   and out of traffic while she was riding as his passenger several days
before the   accident, and the law enforcement officer made her get off of the
motorcycle   due to Reagle’s license restriction.

                                         9
      proximate cause of any damage or injuries is a finding of fact
      to be made by the jury.

         Thus the real issue in this case is whether the trial judge
      erred in deciding as a matter of law that Brackin’s violating
      the restriction on his license was not relevant to the manner
      in which he was operating the automobile.             In some
      situations the violation of such a restriction may be relevant
      to show the driver’s inexperience and incompetence in
      handling an automobile. See Dorsett v. Dion. In this case,
      however, Brackin’s experience and competence were not
      placed in issue. Moreover, the accident took place only a few
      days before Brackin’s seventeenth birthday and he had been
      driving for almost two years. Boles’ case did not rest upon
      Brackin’s inexperience, but rather upon the allegation that
      Brackin was exceeding the speed limit. We therefore find
      that the trial court was correct in ruling that Brackin’s
      violation of [the statute requiring accompaniment by licensed
      adult] was not relevant and therefore was inadmissible.

Id. at 545 (emphasis added).

   We find that the trial court erred when it excluded this evidence.
Reagle admitted that carrying a passenger can change the unique
dynamics of a motorcycle, i.e., the manner in which the motorcycle is
operated. Since “[r]elevancy is usually inherently established when the
traffic regulation which was violated concerns the manner in which an
automobile was operated,” id., we find that—in this particular situation—
the motorcycle license violation was relevant to the case at hand. The
evidence should have been presented to the jury for a determination of
whether the violation proximately caused any of the plaintiffs’ injuries.

                           III.   Conclusion

    Because the trial court erred in excluding the witness statement and
erred in excluding relevant evidence of alcohol consumption and a
license violation, we reverse and remand for a new trial. However, with
particular respect to the evidence of alcohol consumption and the license
violation, we caution that “[s]uch evidence, to be admissible, should be
demonstrated to relate to the relevant issues and not be used solely to
create prejudice in the minds of the jurors.” See Botte v. Pomeroy, 497
So. 2d 1275, 1279 (Fla. 4th DCA 1986).

   Reversed and remanded.

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GROSS and MAY, JJ., concur.

                         *       *        *

  Not final until disposition of timely filed motion for rehearing.




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