Drinking and Driving Almost Never a Necessity: Driving drunk to avoid an assault is no defense to a DWI
The issue of Necessity and Driving Under the Influence of Alcohol is an issue that has occassionally arisen throughout my 16 year career defending individuals charged with DWI throughout the State of Minnesota. Generally speaking, it is rarely ever a valid defense as the burden is extremely high on the defense. This can be best exemplified in an unplublished Minnesota Court of Appeals decision from 2009.
In State v. Atha, the Minnesota Court of Appeals held that a person is not entitled to a defense of necessity for driving under the influence unless there is an emergency where the danger is instant, overwhelming and leaves no alternative but the conduct in question.
In this case, the defendant was out drinking at a bar in St. Cloud with her fiancé, her cousin and her cousin’s friends. The defendant left the bar with her fiancé and went back to her cousin’s house after an argument ensued at bar between her and her cousin. She planned on spending the night at her cousin’s house. Another argument ensued when her cousin and cousin’s friends arrived back to the residence. The defendant then left the house after her cousin’s husband threw a beer bottle at her. She drove to the gas station one block away to call 911. After calling 911, the defendant drove back to the residence to get her fiancé and children, whom she initially had left behind. At that point one of her cousin’s friends tried to attack her fiancé. As the defendant attempted to drive away with her fiancé and children, one man jumped in front of the van and chased them on foot. She drove away and made a U-turn to the gas station. A Stearns County sheriff’s deputy saw the defendant make the U-Turn and drive onto the curb. The deputy stopped her at the gas station. She was charged and later convicted of two counts of second-degree DWI.
At trial, the defendant’s attorney served notice of her intent to rely on the defense of necessity. The state objected and sought an order not to allow a jury instruction of necessity. After two day of a jury trial, the district court denied the defenses request for a necessity instruction. The defendant was subsequently convicted of two counts of driving while impaired.
On appeal, the defense argued it was an abuse of discretion for the district court to refuse her request for a jury instruction on the defense of necessity. The Court disagreed and found that the defendant had not made an initial showing of necessity to warrant a jury instruction on the defense of necessity. The Court ruled that the necessity defense applies only in emergency situations and a defendant must show that peril is instant, overwhelming and leaves no alternative but the conduct in question.
The Court reasoned that the driver needed to show that she had no legal alternative to breaking the law, the harm to be prevented was imminent, and a direct causal connection existed between breaking the law and preventing the harm. In other words, she needed to show that the harm that would have resulted from compliance with the law would have significantly exceeded the harm that resulted from breaking the law.
The Court further stated that the necessity defense is a very exceptional defense that requires an extraordinary set of circumstances that were not present in Atha’s case. The Court drew this conclusion based on the defendant’s testimony. The Court found that she had alternatives to driving. First, she could have gone to sleep to avoid confrontation rather than remaining awake. Second, because the gas station was less than a block away, she could have walked or ran to the gas station in nearly the same time as was required to drive there. Finally the Court found that the driver could have waited at the gas station for the police to arrive as opposed to driving back to the residence a second time.
The Court in Atha concluded that the district court did not abuse its discretion by refusing to give Atha the requested necessity instruction because Atha did not make a showing that the danger was instant, overwhelming, and left no alternatives but the conduct in question.