Is there a necessity defense to driving while intoxicated?

Posted on Aug 22, 2013

I recently saw an article about a Minnesota case where the Supreme Court agreed to review a case and determine whether a defendant could use the defense of necessity in a driving while intoxicated case. The defendant was a woman who was being beaten by her husband. She ran outside and locked herself in her car. The husband came out and started breaking windows to try and get in. She then drove less than a mile to a nearby resort. The husband followed and was arrested after the police were called. That wasn't the end of it though - the police charged her with driving while impaired, and promptly revoked her license. (which is apparently how they do things in Minnesota).

She took her case to court, and tried to raise the defense of necessity. Remarkably the trial court refused to allow her to do that - which is how the case ended up in the Supreme Court.

It's not often that Texas courts are more lenient than other courts - but this is one. Texas Courts have not limited the necessity defense to certain types of cases. That includes DWI cases.

The defense is not easy to establish. A defendant  must prove:

  1. the conduct was immediately necessary to avoid imminent harm
  2. the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be avoided by the law proscribing the offense, and 
  3. a legislative purpose to exclude the justification for the conduct does not otherwise appear.

Under Texas law, it would have been error to prevent the Minnesota defense from raising the defense. She would have leasat had the opportunity to convince a jury she was not guilty. For example, the Dallas Court of Appeals held a man should have been able to raise the necessity defense where his wife started having trouble breathing and passed out, and he took the wheel and drove her to the hospital.

While it's a rare case where the necessity defense is available, it's there for the appropriate case. Ultimately, it will be the lawyers job to convince a judge or  jury that the choice to drive while intoxicated was necessary to avoid a greater harm.

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