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Private investigator licensing is controlled by each state. For private investigator licensing requirements, see http://www.crimetime.com/licensing.htm. Please direct all questions to the appropriate state agency.

Do you need a private investigator’s license?

Forty-two states and the District of Columbia have licensing requirements for private investigators. The stated purpose of licensing is to regulate the industry and to keep the unqualified out of the profession. Thirty-one state’s laws [1] contain language that specifically requires a private investigator’s license to investigate or reconstruct traffic accidents in private practice. For example, under the definition of private investigator, they provide the following in their respective statutes -

"Private investigator means any individual who, for consideration, advertises as providing or performs private investigation."

The same states, defining private investigation

- "Private investigation means the investigation by a person or persons for the purpose of obtaining information with reference to any of the following matters:

The causes and origin of, or responsibility for, fires, libels, slanders, losses, accidents, damage or injuries to real or personal property.

The business of securing evidence to be used before investigating committees or boards of award or arbitration or in the trial of civil or criminal cases and the preparation therefor."

The above language can be interpreted to mean if you analyze or reconstruct traffic accidents in private practice, you are required to obtain a private investigator’s license; although there are exceptions. Employees of any government agency, such as a police officer, are exempt as long as the work is part of their government employment. Attorneys, insurance adjusters and full time "in-house" investigators for insurance companies and law firms are generally exempt.

Arkansas’ statutes define accident reconstruction as:

"… the interpretation of physical evidence in the application of scientific principles to form opinions relative to the events of an accident."

Holding a state professional engineering license may, or may not, provide for an exemption. Thirty-six states define engineering as:

… any service or creative work, the adequate performance of which requires engineering education, training and experience in the application of special knowledge of the mathematical, physical, and engineering sciences to such services or creative work as consultation, investigation, evaluation, planning and design of engineering works and systems, planning the use of land and water, teaching of the principles and methods of engineering design, engineering surveys, and the inspection of construction for the purpose of determining in general if the work is proceeding in compliance with drawings and specifications, any of which embraces such services or work, either public or private, in connection with any utilities, structures, buildings, machines, equipment, processes, work systems, projects and industrial or consumer products or equipment of a mechanical, electrical, hydraulic, pneumatic, or thermal nature, insofar as they involve safeguarding life, health, or property; and includes such other professional services as may be necessary to the planning, progress and completion of any engineering services.

Specific Exemptions -

Several states, with definitions as above in the statutes, also have exemptions to private investigator licensing:

Indiana - a professional engineer does not need a private investigator’s license when engaged "in an investigation incident to the practice of engineering."

Washington - specifically exempts accident reconstructionists.

Louisiana - "technical experts."

North Carolina - "consultants who analyze, test or in any way apply their expertise to interpreting, evaluating or analyzing facts or evidence submitted by another in order to determine the cause or effect of physical or psychological occurrences."

Ohio - any expert hired by an attorney.

Virginia - persons regularly employed to investigate accidents and any "certified forensic scientist" employed as an expert witness.

Legal Opinions -

Florida’s Secretary of State has issued the following opinions on the subject. In Legal Opinion 94-1:

Engineers regulated by Chapter 471 (Professional Engineer) do not have to also be licensed under Chapter 493 (Private Investigator) if the engineer is providing services or expert advice in the profession for which he is licensed, e.g., engineering.

This goes to the question of whether traffic accident reconstruction is an engineering discipline, a police science discipline, a combination of both or more. Traffic accident reconstruction necessarily involves factors outside the scope of engineering such as collision avoidance, tire mark interpretation and human factors.

According to Fred Speaker, an enforcement investigator with the Florida Department of State, Division of Licensing, an engineering license does not cover accident reconstruction. If a licensed engineer engages in the typical activities of accident reconstruction, skid testing, evidence collection, surveying accident sites, etc., then a private investigator’s license is required.

Michele Guy, Assistant General Counsel with the Florida Dept. of State, responded to a request for clarification from the author. In this letter, dated January 4, 2001, Ms. Guy states:

"Pursuant to your request and our conversations, I am writing to confirm that, as a general rule, traffic accident reconstructionists are not required to hold private investigator licenses. If, however, you intend to interview witnesses, perform surveillances, or provide any other routine private investigative services, you would be required to hold private investigator licenses."

Legal Opinion 97-9 examines the issue of providing services outside the traditional bounds of the licensed activity:

The Florida statutes provide that any person who holds a professional license under the laws of this state, and when such person is providing services or expert advice in the profession or occupation in which that person is so licensed, is exempt from private investigator licensing requirements. Thus, a licensed accountant would be permitted to perform forensic accounting without a private investigator’s license. Not all investigative services can be performed under his accounting license. The investigative activity of surveillance, for example, is not an activity which accountants normally perform. Thus, if the accountant performed surveillance he would need a private investigator’s license.

Legal Opinion 97-5 addresses a safety consultant determining the cause of an accident:

A contract safety consultant, who’s primary function is safety training and workplace inspections, occasionally conducts an investigation when an employee has been injured on the job to determine the cause of the accident. In the Florida statutes, private investigation includes investigation for the purpose of obtaining information with reference to ‘the business of securing evidence to be used . . . in the trial of civil . . . cases and the preparation therefor.’ If the investigation is related to litigation, a private investigator’s license is required.

With this interpretation, the engineering licensee’s activities may be restricted to traditional engineering factors. Data collection, analysis or expert advice beyond the scope of engineering, as defined in the state law, would be unlicensed activity.

In 1980, George Firestone, Florida Secretary of State, issued a Declaratory Statement (DS 80-04) on the subject of private investigator licensing for scientific and technical investigations. The statement includes:

"The Department of State concurs that Kennard v. Rosenberg, [see footnote 9] is persuasive, and that when taken together with the previously cited Attorney General's Opinion (1967 Op. Att'y. Gen. Fla., 067-1) and Florida Supreme Court Court case (Segal v. Simpson, 121 So. 2d 790 (Fla. 1960), demonstrates that the intent of the Legislature in writing Chapter 493 was not to require every person conducting technical and scientific investigations into the causes of physical phenomena or events to first obtain a private investigator's license."

On April 27, 2001, Constance Crawford, Chief, Florida Dept. of State, Bureau of License Issuance, authorized a refund of all license fees and costs that were paid by the author in compliance with the statute. Crawford stated in an e-mail, " ... there was much confusion and misunderstanding among all involved." The Florida Professional Licensing database indicates the license has been "relinquished/cancelled".

Michigan’s Attorney General has issued a legal opinion [2] that exempts technical experts:

"The Act [3] was not intended to apply to persons who, by virtue of their technical knowledge and experience, have been employed to provide expert testimony in a lawsuit even though, in doing so, they may incidentally perform one or more of the activities described in the Act."

New Hampshire’s statutes are vague on the status of expert witnesses. Title 7, Chapter 106-F defines a private detective as anyone that conducts investigations "involving, but not limited to, unsolved crimes, insurance, clandestine surveillance, missing persons, lost, concealed or stolen property and escaped felons..."

New Hampshire Department of Safety Assistant Commissioner Robert Dunn responded to the issue in a letter dated Dec. 22, 1992 [4]. The letter states:

"It is the opinion of this agency that, as long as you are simply performing the tasks of a reconstruction specialist, you need not be so licensed. Of course, if information comes to the attention of the Department of Safety that you are carrying out activities which would bring you into the realm of persons required to be licensed, you will need to comply with the mandates of RSA 106-F."

The Texas Commission on Private Security has ruled traffic accident reconstructionists must be state licensed. The policy letter, written by Jim Kimbrough, Executive Director of the Texas Board of Private Investigators and Private Security Agencies, dated September 29, 1999, to Ben Nix, Presiding Officer, states:

"Questions have arisen with respect to the deletion of a specific exemption from our former statute related to "expert witnesses." This particular exemption was overbroad in scope and abused by some that the legislature indeed intended to be regulated by our statute. The deletion of the "expert witness" exemption, however, will not intrude on those that have generally been considered as "experts" under the Texas Rules of Procedure who testify concerning facts obtained or gathered by others. The Act will require licensure of those who otherwise meet the definitions of an "Investigations Company" as defined by the Texas Legislature.

Individuals who testify as to their opinion or mental impressions of facts gathered or provided by another are not subject to registration or licensure under Article 4413(29bb). Additionally, an attorney who testifies as to his or her opinion or mental impressions of a law based on facts provided by other attorneys on direct or cross examination is not subject to our Act. Finally, as a general proposition, individuals who are licensed and regulated by a state or federal agency, and who are engaged in their respective professions and who are called to testify on matters within the scope of their licensed activities are not subject to Article 4413(29bb)."

The Texas statute, referenced in the letter, defines private investigation as:

" …the investigation by a person or persons for the purpose of obtaining information with reference to any of the following matters:

The causes and origin of, or responsibility for, fires, libels, slanders, losses, accidents, damage or injuries to real or personal property.

The business of securing evidence to be used before investigating committees or boards of award or arbitration or in the trial of civil or criminal cases and the preparation therefor."

A key element of the Texas opinion letter rests in the "…concerning facts obtained or gathered by others…" as supposedly providing an exemption for most experts. In traffic accident reconstruction, and many other forensic professions, it is necessary for the expert to obtain first hand information to formulate an admissible opinion. An expert, by intentionally not visiting an accident site, viewing vehicles or other evidence solely to remain within the limits of the policy, may be guilty of fraud, malpractice or unprofessional conduct and liable for damages if it is shown the expert would have come to a different conclusion had the available evidence been examined in person.

Under the Texas statutes, it is a Class A Misdemeanor to conduct investigations without a Texas license, third degree felony for a second conviction, and a Class A Misdemeanor for anyone to knowingly hire an unlicensed investigator [5]. Also contained in the statutes of several states are provisions that require the holder of a private investigator's license to report any known unlicensed activity to the licensing agency or face administrative sanctions which can include the suspension or revocation of their license.

Texas Lawyer Magazine has published an article [6] on the issue. In this article, lawyers have expressed concern the testimony of many experts could be endangered and the attorney that hires an unlicensed expert may face criminal charges. Kimbrough says he interprets the statute to mean that professionals who are licensed and regulated by the state, such as physicians and engineers, are still exempt although the law does not provide for that but does have specific exemptions for attorneys and insurance adjusters.

The article also says Celina Romero, Chairwoman of the Administrative Law Section of the State Bar of Texas would like the agency to adopt a clarifying policy or obtain an attorney general's opinion. Kimbrough responded he would not do either; the agency's rules are an inappropriate venue to interpret policy and a legal opinion is unnecessary as he is confident his interpretation reflects the Legislature's intent.

The Texas statute was changed by a bill sponsored by Rep. Fred Bosse. According to Bosse, "The intent of it was to close what appeared to be a loophole in the licensing act where someone could hang a shingle out essentially and call themselves an accident investigator or an expert." [7]

Case Law -

There has been at least one occasion where an expert has not been allowed to testify solely because the individual did not hold a state private investigator's license. In Ashkar v. Parson [8], the trial court ruled a traffic accident reconstruction expert was required to hold a private investigator's license under the state law as the activities were investigative as defined in the statutes. Since the individual did not hold a private investigator's license, the activities resulting in the collection of the evidence to be presented were obtained in violation of the state law and the expert, otherwise qualified, was not allowed to testify.

California’s courts have ruled on the issue several times. In Kennard v. Rosenberg [9], a registered chemical engineer was retained to determine the cause of a building fire. The court said, "The uncontradicted evidence is that none of the plaintiffs herein were engaged in the private detective business or represented themselves to be so engaged. Plaintiffs were licensed engineers and as such were authorized to make investigations in connection with that profession. It seems quite clear that the private detective license law was not intended by the Legislature to place a limitation on the right of professional engineers to make chemical tests, conduct experiments and to testify in court as to the results thereof. A physician, geologist, accountant, engineer, surveyor or a handwriting expert, undoubtedly, may lawfully testify in court in connection with his findings without first procuring a license as a private detective, and, as in the instant case, a photographer may be employed to take photographs of damaged premises for use in court without procuring such a license. Likewise, plaintiff, who was hired as a consultant and expert and not as a private detective and investigator was not required to have a license as such before being permitted to testify in court as an expert."

In Dickey v. Raisin Proration Zone No. 1 [10], "…it is stated that the primary rule of statutory construction, to which every other rule as to interpretation of particular terms must yield, is that the intention of the Legislature must be ascertained if possible, and, when once ascertained, will be given effect even though it may not be consistent with the strict letter of the statute and that a statute is to be construed in a way which will render it reasonable, fair and harmonious with its manifest purpose and which will avoid mischief or absurd consequences."

In Bank of Alameda County v. McColgan [11], "It is the substance rather than mere form that often governs in the construction of statutes if strict adherence to form would result in an injustice."

In Kennard [12], the court concluded "… it was the intent of the Legislature to require those who engage in business as private investigators and detectives to first procure a license so to do; that the statute was enacted to regulate and control this business in the public interest; that it was not intended to apply to persons who, as experts, were employed as here, to make tests, conduct experiments and act as consultants in a case requiring the use of technical knowledge."

Licensing Rules -

Under the state licensing authority’s rules, there can be specific criteria that must be met to qualify

Email: experts@harristechnical.com Website: http://www.harristechnical.com/  Reprinted with permission from Harris Technical Services