Necessity Defense to a DUI Charge

There are certain defenses that can be raised by a motorist charged with the offense of drunk driving, either driving while under the influence (DUI) or driving while intoxicated (DWI). One such defense is the “necessity” defense. This defense, which is sometimes referred to as ”choice of evils,” and ”competing harms” defenses, is presented when the motorist admits that he or she drove while intoxicated, but did so under threatening circumstances. The necessity defense exculpates the motorist for conduct that would otherwise be a crime when the motorist engages in the conduct in order to prevent something worse from occurring.

The necessity defense is said to have four basic elements: (1) there must be a situation of emergency arising without fault on the part of the actor concerned; (2) this emergency must be so imminent and compelling as to raise a reasonable expectation of harm, either directly to the actor or upon those he or she was protecting; (3) this emergency must present no reasonable opportunity to avoid the injury without doing the criminal act; and (4) the injury impending from the emergency must be of sufficient seriousness to outmeasure the criminal wrong.

The second and third elements are judged by a subjective test, i.e. the actor reasonably believed that those two elements were present, even if the belief was mistaken. The fourth element is generally considered a factual issue for the court or jury. In addition, the defense presupposes that the jurisdiction permits this defense for the charged offense. For example, the defense is unavailable if the DUI/DWI resulted in death or injury.

The related defenses of “compulsion” and “duress” are theoretically distinct defenses from the defense of necessity. Compulsion/duress implies an absence of choice, while necessity, however, implies that the motorist’s conduct was the sole, reasonable alternative available to him or her given competing harms at that point. Nevertheless, the terms are sometimes used interchangeably by the courts.

To illustrate, the defense of necessity was successfully made in a case where a woman drove while intoxicated to escape the threat of serious physical harm from her father. In that case, the court also found that the woman had attempted, but failed, to arrange alternative transportation before driving herself to safety. The necessity defense was rejected in a case where an intoxicated pharmacist drove to the pharmacy where he was employed in response to a burglar alarm. The court felt that there were alternatives to driving to the pharmacy, such as walking to the pharmacy (a .25 mile distance) or calling the pharmacy’s owner to respond to the alarm.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.