The Necessity Defense in a DUI case


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The Necessity Defense in a DUI case

The Necessity Defense in DUI cases

One defense allows justification of drunk driving, if there was a compelling enough reason to break the law.  A person can be found not guilty of DUI if they had a valid reason for driving drunk. This page discusses the Necessity Defense in DUI cases.

What is the Necessity Defense?

The definition of necessity is that the action, which was illegal, was a necessity, in order to prevent a greater evil.  The harm the defendant wanted to avoid outweighs the danger of the prohibited conduct the person is charged with.

The necessity defense has been part of historical common law, so it’s been a part of the law for a long time.  In the earliest case, it was used to defend a trespass charge, when it was shown that the defendant had trespassed on the property to save a life.  Committing the trespass thus avoided the danger of death to another.

What does the law require to prove the Necessity Defense in a DUI case?

At trial, if a defendant is asserting the necessity defense, to excuse a charge of driving under the influence, the jury deciding the case will be instructed exactly as follows:

The defendant is not guilty of <insert crime[s]> if (he/she) acted because of legal necessity.
In order to establish this defense, the defendant must prove that:
– 1. (He/She) acted in an emergency to prevent a significant bodily harm or evil to (himself/herself/ [or] someone else);
– 2. (He/She) had no adequate legal alternative;
– 3. The defendant’s acts did not create a greater danger than the one avoided;
– 4. When the defendant acted, (he/she) actually believed that the act was necessary to prevent the threatened harm or evil;
– 5. A reasonable person would also have believed that the act was necessary under the circumstances;
– 6. The defendant did not substantially contribute to the emergency.
The court would also instruct the jury as to the different burden of proof as to this one part of the case, and that the burden is on the defense to show this defense. The jury would be instructed as to this aspect of the case as follows:
The defendant has the burden of proving this defense by a preponderance of the evidence. This is a different standard of proof than proof beyond a reasonable doubt. To meet the burden of proof by a preponderance of the evidence, the defendant must prove that it is more likely than not that each of the six listed items is true.
So, not only do you have to show that the act of driving under the influence was triggered by an emergency, but that it prevented harm to yourself or to others, and was reasonable, and did not end up creating a greater harm overall than DUI.
Thats a large burden, and the necessity defense will not apply in every case.

So When does the Necessity Defense apply in a DUI case?

The defense of necessity applies when those elements are present.  Here are a couple of examples from actual cases our Orange County DUI Attorney, Robert Miller,  has handled in the past:
Example One: A man was drinking at a bar in a neighborhood known for gang activity.  Outside the bar, a shooting occurred, and at least one person people inside the bar pulled out a gun.  Our client left out the back entrance, got into his car, and drove to a payphone to call for police help.  When the police arrived, they arrested him for DUI.
We asserted the necessity defense, and the prosecutor said that DUI could be as dangerous as a shooting.  The prosecutor also said that because the bar had a phone, staying in the bar and calling the police was the right thing to do.
The case went to jury trial, and the jury found that the situation was an emergency not caused by the defendant, that the act of driving away to call the police was reasonable, and that there was no reasonable alternative.  The defendant in that DUI case was found not guilty of DUI. 
Example Two:  A woman on a first date ended up at her date’s home.  Feeling that she was drunk, or might have had her drink spiked with something, she mentioned that she felt drunk.  The man said he was going to take advantage of her, then, and she felt scared and drove away.  She was stopped shortly afterwards, and was arrested for DUI.  She did not mention until well afterwards that she feared that she was going to be the victim of a rape.
The prosecutor pointed out in that case that she had driven to the situation, and had chose to drink, and had a cellphone on her.  They did not believe that there was a necessity defense in that case.  However, because of her low blood alcohol level, the existence of that issue caused the case to be reduced to a reckless driving with alcohol (a wet reckless) charge.
In Texas, necessity has even been used successfully by inmates who escape from prison under certain circumstances. In Spakes v. Statethe highest criminal court in Texas allowed the jury to be instructed on the necessity defense before deliberating the verdict for an inmate whose three cellmates had planned an escape and threatened to slit his throat if he did not accompany them. The defendant inmate argued that because of the terribly violent crimes of which his cellmates had been convicted (one had bragged about chopping his girlfriend up with an ax), he accompanied them and escaped. Even though he made no attempt to return himself to custody when he was separated from his cellmates, the court still allowed the defense.
The defense of legal necessity is seen as an unusual situation, requiring not only proof, but that the actual danger is greater than driving under the influence.

How is the Necessity Defense asserted in a case?

Any DUI specialist would be able to assert proof of a necessity defense to the prosecutor as part of the plea bargain process during a pretrial in the case.  That may be enough to have the prosecutor agree to dismiss the case, or offer to reduce the charges.

However, as mentioned above, it is considered a trial defense.  At trial, the jury can be instructed on how necessity excuses a DUI, and that they could find the defendant not guilty of the crime of DUI or related charges, if the necessity defense is proven.

Contact Us Now – Let’s Get Started.

Don’t delay contacting us if you have questions about the necessity defense in a DUI case.  We can start you on a plan of action today that will help your court date later. Contact us today.



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