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What Is The "Necessity Defense" In DUI Cases -- And Can It Help You?

If you've been charged with driving under the influence (DUI) or driving while intoxicated (DWI) while fleeing a dangerous situation, you may be wondering whether there are any defenses you can reasonably assert. It seems unfair to be charged with a crime when you were attempting to save your own life. Fortunately, criminal law recognizes the doctrine of necessity as a viable defense in certain situations. Read on to learn more about the necessity defense and whether it could potentially help you avoid a criminal conviction or jail time.

What is the "necessity defense"?

This defense may also be deemed the "choice of evils" defense, and comes into play when you can argue that you only drove while intoxicated or impaired to avoid a greater danger to your life. One of the most common examples is the situation in which you and your partner are both intoxicated and your partner suddenly turns to violence or grabs a weapon. You may feel your only choice to quickly escape the situation is to drive -- even though you've been drinking. Even if you are later stopped and arrested for DUI, this outcome may be preferable to what awaited you at home.

The necessity defense is not available in many states, although several are currently considering legislation to help expand its use. If you feel this defense could apply to you, consult an experienced criminal defense attorney in your state. Your attorney will be able to evaluate the facts of your case

What are some situations in which this defense could assist you?

As discussed, domestic violence situations are common for cases in which the necessity defense is used. You could also assert this defense if you were at a party or other gathering that suddenly became violent. You may be able to assert this defense if you received a viable physical threat over the phone or internet that threatened your safety if you stayed at your present location -- for example, if someone sent you an internet message that they were about to come to your home with a gun.

Another common situation is not avoiding physical harm, but stopping further harm. For example, if you cut yourself badly (or need to take a family member to the emergency room) and believe an ambulance would not arrive in time, you may need to drive while impaired to prevent more serious harm or death.

In most jurisdictions, the necessity defense has only been successful if the danger from which you are fleeing involves immediate physical harm. Theft or destruction of property has not generally been an acceptable reason to break the law, nor have situations in which it is cold outside and you argue that you must sit in a running car in order to warm up (unless it is below freezing).

What do you need to demonstrate the existence of necessity in your specific case?

The necessity defense is a type of affirmative defense -- these defenses are used as mitigating factors when your guilt is clear (through witness testimony and blood alcohol testing) or you have already confessed to the commission of a crime such as drunk driving. In fact, in order to use the necessity defense, you must admit that you broke the law, but argue that you had a justifiable reason to do so. Because drinking and driving not only endangers you, but others, you'll need to show to the judge (and jury, if applicable) that breaking the law was your only reasonable alternative.

If you were the victim of a domestic violence situation, pressing charges against your abuser can help the judge see that you are serious about preventing such a situation again. The existence of a police report following the incident can also help. If your drunk driving was the result of a serious injury, you'll need to be able to provide medical information showing that you immediately sought help.

If you have more questions about using the necessity defense in your case, talk to an experienced criminal defense attorney