When does a person charged with Driving While Impaired have the ability to claim the duress defense and/or coercion defense?

Can one become forced into driving while impaired? In certain circumstances a defendant charged with DWI may be able to argue that he was forced into the crime. If that is the case, the defendant will be presenting the affirmative defense of duress / coercion. This article discusses the “duress defense” as it applies to DWI cases and offers pointers on how to successfully argue this defense to a judge or jury.

Elements of the Duress Defense

While many factual scenarios giving rise to a defense based on duress exist, the defense typically involves assault situations. Where an individual is using a vehicle to flee assailants and avoid a fight or physical confrontation, the duress defense may be available to the defendant.

To establish the defense of duress, a defendant must prove to the satisfaction of the jury that:

His actions were caused by a reasonable fear that he (or another) would suffer immediate death or serious bodily injury if he did not commit the crime.

See State v. Smarr, 146 N.C. App. 44, 54-55, 551 S.E.2d 881, 888 (2001). This showing is much simpler than presenting a defense based on necessity (see below) and it may be strategically better to focus on one or the other of these defenses based on the circumstances of the crime.

The focal point of establishing the duress defense is the reasonable fear that the defendant believed he or another person would suffer serious bodily injury or death. There is no requirement in the defense of duress that the defendant had no alternative but to drive. For instance, the Defendant need not show that it would have been impossible to flee on foot from assailers. The defendant only needs to show that he reasonably feared bodily harm and as a result drove away from the situation.

Distinguishing the Duress Defense from the Necessity Defense

In an unpublished 2015 decision, the NC Court of Appeals stated: “Although the defenses of duress and necessity were historically distinguished under common law, modern cases have tended to blur the distinction.” State v. Badson, 242 NC. App. 384, 776 S.E.2d 364 (2015). However, the Court of Appeals eliminated the gray area of these defenses in State v. Miller, ____ N.C. App. _____, No. COA17-405 (2018) when it held that “the defense of necessity is recognized as a defense separate and distinct from the defense of duress.”

The elements of a defense based on coercion/duress and a defense based on necessity are different and would require separate instructions and persuasive arguments depending on the facts of each particular case. However, some situations might allow for an instruction on both defenses and arguments for the same.

See our article on the Necessity Defense in the DWI Context for analysis of that defense.

Dissipation of the Duress Defense

The Courts have grappled with how long the coercive circumstances (which initially led defendant to drive) continue once the defendant is out of harm’s way. Evidence tending to show a defendant’s appropriate flight from pedestrian pursuers does not continue “thirty minutes later after his pursuers had been left many miles behind.” State v. Cooke, 94 N.C. App. 386, 387, 380 S.E.2d 382, 382 (1989) (“nothing in the record suggests that defendant would have exposed himself to harm of any kind if he had stopped driving the car long before the officer saw him”); See also State v. Badson, 242 N.C. App. 384, 776 S.E.2d 364 (2015) (unpublished) (“Without some testimony to support a conclusion that defendant drove only as afar as necessary to get out of harm’s way and seek help, the defendant has failed to meet his burden”).

However, the Miller Court held that on the facts of that case “two-tenths of a mile was not, as a matter of law, an unreasonable distance to drive before pulling off the highway.”

Burden of Proving the Duress Defense

The burden is on the Defendant to prove the defense of duress to the jury’s satisfaction. Remind the jury that this burden is not beyond reasonable doubt, but only to the jury’s satisfaction.

Notice of Duress Defense

If the Defendant is charged with Habitual Impaired Driving or Felony Death by Vehicle, giving the Superior Court original jurisdiction of the case, the defendant may be required to give notice of the defense of duress upon a motion for such disclosure from the State. N.C.G.S. 15A-905(c)(1). If the Defendant is required to give such notice by order of the court, the Defendant must do so within 20 business days after the case is set for trial and must specifically state the nature and extent of the duress defense.

If the defendant is charged with misdemeanor driving while impaired, the original jurisdiction of the court being with the district court, then there is no requirement to give notice to the State of the intent to assert the defense of duress. See Badson.

Jury Instruction for Defense of Compulsion, Duress, or Coercion


The North Carolina Pattern Jury Instruction for a defense based on compulsion, duress, or coercion is as follows:

There is evidence in this case tending to show that the defendant acted only because of [compulsion] [duress] [coercion]. The burden of proving [compulsion] [duress] [coercion] is upon the defendant. It need not be proved beyond a reasonable doubt, but only to your satisfaction. The defendant would not be guilty of this crime if his actions were caused by a reasonable fear that he (or another) would suffer immediate death or serious bodily injury if he did not commit the crime. His assertion of [compulsion] [duress] [coercion] is a denial that he committed any crime. The burden remains on the State to prove the defendant’s guilt beyond a reasonable doubt.

N.C.P.I. Crim. 310.10.