When does a person charged with Driving While Impaired have the ability to claim the necessity defense?
In most attacks to a driving while impaired case, the defense is trying to argue reasonable doubt as to one or more of the elements of the DWI charge. However, there are affirmative defenses to DWI that must be proved by the defendant. One defense that has been a focal point of recent NC appellate opinions is the defense of necessity. There are a number of scenarios where a defendant may be able to successfully argue necessity including: a medical emergency, fleeing from a dangerous situation, or even responding to a vehicle’s mechanical failure. This article discusses the necessity defense as it applies to DWI cases and a framework for arguing these cases to a judge or jury.
Public Policy behind Necessity Defense
I generally don’t start legal arguments by advocating public policy. But, in the context of the necessity defense, public policy is the entire reason the defense exists.
The rationale behind the defense is based upon the public policy that,
“the law ought to promote the achievement of higher values at the expense of lesser values, and [that] sometimes the greater good for society will be accomplished by violating the literal language of the criminal law.” “[I]f the harm which will result from compliance with the law is greater than that which will result from violation of it, [a person] is justified in violating it.”
State v. Thomas, 103 N.C. App. 264, 265, 405 S.E.2d 214, 215 (1991) (citations omitted) (alterations in original). The necessity defense is based on the theory of civil disobedience; laws can be violated when doing so brings about the greater common good.
It is important to start with the justification for the existence of the necessity defense, because it gives the judge or jury a reference point for thinking through the factual and legal issues that exist in each case.
Elements of the Necessity Defense
A defendant must prove three things to establish the defense of necessity:
- reasonable action,
- taken to protect life, limb, or health of a person, and
- no other acceptable choices available.
In State v. Miller, the Court specifically held that the Defendant’s being afraid is not relevant in determining the existence of the necessity defense: “Our case law does not include fear as an element of the defense of necessity.” Miller, ____ N.C. App. _____, No. COA17-405 (2018)
The touchstone of reasonableness in criminal jurisprudence once again makes its appearance. The standard is not perfect action, but reasonable action. In a different light, any action that is not unreasonable satisfies this requirement.
When arguing this element on your client’s behalf, consider the following factors (and argue appropriately):
- Whether your client was making a split–second decision;
- The availability of calling 911 or other appropriate emergency personnel;
- The seriousness of the threat;
- The defendant’s military, employment, educational, or other relevant background in evaluating the situation; and
- The state of mind a person facing similar circumstances to the defendant would be in.
Reasonableness depends on the circumstances. Many instances involving the necessity defense will not be situations conducive to calm and clear decision making, but rather chaotic circumstances lending to on the spot reactions. That is the lens through which reasonableness should be viewed.
Protecting Life, Limb, or Health of a Person
The necessity defense cannot be invoked to protect property. However, since the defense requires only that the health of a person be in jeopardy, this standard appears to be low.
In Hudgins, the defendant jumped into a runaway car in an attempt to stop the vehicle. The Court found that the vehicle’s potential to hit a pedestrian or motorist was enough to meet this requirement, without concern for an actual known person being harmed.
No Other Acceptable Choices Available
“This element is closely associated with the ‘reasonable action’ element.” Miller.
This element appears to be the most difficult element for the defense to meet. The State might be able to come up with hundreds of possible scenarios where a person in the defendant’s situation acted differently.
This element is the crux of the necessity defense. Why did your client take the action that he did? What were the alternatives? How accessible were those alternatives? In proving the necessity defense, it is critical that you attempt to rule out and undermine the existence of alternative actions that your client could have taken.
Dissipation of the Necessity Defense
The courts have wrestled with how long the necessity defense, once established, continues. 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. at 387, 380 S.E.2d at 382; 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 far as necessary to get out of harm’s way and seek help, defendant has failed to meet his burden”).
However, the Miller Court held that “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 Necessity Defense
The burden is on the Defendant to prove the defense of necessity 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 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 certain defenses upon a motion for such disclosure from the State. However, N.C.G.S. 15A-905(c)(1) does not speak to the defense of necessity. Therefore, it appears that under the current statute, disclosure of the necessity defense on a felony related DWI would not be required.
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 necessity. See Badson.
Distinguishing Necessity Defense and Defense Based on Coercion or Duress
The Court of Appeals in Miller held that,
“the defense of necessity is recognized as a defense separate and distinct from the defense of duress.”
In a case of driving while impaired, the Defendant may have facts that support neither defense, both, or only one. 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.
See our article on the Duress Defense in the DWI Context for tips on asserting the separate defense based on coercion or duress.
Jury Instruction for Defense of Necessity
If the evidence presented at trial, viewed in the light most favorable to the Defendant and ignoring all contradictory evidence, was sufficient to permit the jury to reasonably infer the three elements of the necessity defense, the trial court is required to give an instruction on necessity.
As the Court in Miller noted, in North Carolina, there is no pattern jury instruction that expressly addresses the defense of necessity. Therefore, defense counsel should specifically request an instruction on the necessity defense and do so in writing with supporting case law.
Here is a suggested language for requesting an instruction on the necessity defense:
There is evidence in this case tending to show defendant acted only out of necessity. To establish the defense of necessity, a defendant must show: (1) he took reasonable action, (2) such action was taken to protect life, limb, or health of a person, and (3) no other acceptable choices were available. The defendant need not prove this defense beyond reasonable doubt, but only to your satisfaction.
The rationale behind the defense is based upon the public policy that the law ought to promote the achievement of higher values at the expense of lesser values, and sometimes the greater good for society will be accomplished by violating the literal language of the criminal law. If the harm which will result from compliance with the law is greater than that which will result from violation of it, a person is justified in violating it.
If you are satisfied from the evidence that defendant took reasonable action in driving while impaired to protect the life, limb, or health of a person and there were no other acceptable choices available to the defendant, it would be your duty to return a verdict of not guilty.
State v. Miller, ____ N.C. App. _____, No. COA17-405 (2018); State v. Hudgins, 167 N.C. App. 705, 710–11, 606 S.E.2d 443, 447 (2005); State v. Thomas, 103 N.C. App. 264, 265, 405 S.E.2d 214, 215 (1991). Compare with N.C.P.I. Crim. 310.10.