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The Necessity Defense To Dui


Let’s say that after dinner — and too many drinks — at a friend’s house, your husband is driving you home.  He suddenly feels intense pain shooting up his left arm, swerves off the road and loses consciousness.  You jump behind the wheel and start driving at high speed for the hospital.  As you pull up to the emergency center, a police car follows in after you, its lights flashing.  Shortly afterwards, you are arrested for drunk driving.


Maybe — and maybe not.  The courts, as is common in DUI cases, are in considerable disagreement.  Some states recognize the affirmative defense of necessity, or as it is sometimes called, the choice of evils defense.  As one New Jersey judge observed, “When, as here, there is a collision between law and common sense, this court should exert its best effort to vindicate common sense.  Our institutional legitimacy depends on our succeeding in that endeavor.”  State v. Fogarty, 607 A.2d 624.

Other courts prefer law over common sense in DUI cases, or severely limit the defense’s application.  In People v. Slack, 258 Cal. Rptr. 702, for example, the defendant was fleeing across the Mexican border from Tijuana police who had beaten him in the past.  The court held that he had not adequately shown that there was no alternative to drunk driving, or that the emergency was not the result of his own conduct.  More to the point, the court said that “the risk of vehicular destruction is so great that even the risk of physical assault to the intoxicated person pales in comparison.”

Continuing the inconsistencies, some courts permit the defense in criminal cases — but, illogically, not in license suspensions.  As another California court has held:

(The) relevant statutes and their clear public policy preclude the application of the necessity defense to administrative hearings….In contrast to criminal prosecution for drunk driving, the administrative remedy involving the suspension of driver’s licenses was designed to be a “swift and certain” method of deterring such conduct. 

However, yet another California court had earlier come to the opposite conclusion, saying that “It is undeniably true that under any reasonable concept, right and justice would be defeated by the erroneous suspension of (his) driver’s license.”  Curtin v. DMV, 123 Cal. App.3d 481.

To muddy the waters further, there is a separate but related defense of duress which is often confused with the necessity defense. 

So….Was driving your husband to the hospital a criminal act?  As is often the case, that may depend upon what state you were in, or what cases the judge chooses to follow.

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