When Driving Drunk Becomes Necessary

There are two fundamental ways in which a DWI is challenged. One is a legal challenge which deals with the constitutionality of the progressive intrusion into one’s fundamental Fourth Amendment Rights. This primarily asks a court to suppress evidence in a DWI case before any sort of trial. It could raise a challenge to the basis for stopping the vehicle in a case. If the stop is legally proper, one could challenge the basis for the expansion of the the traffic stop into a DWI investigation, basically determining whether it was proper to ask a person to come out of the vehicle for standardized field sobriety testing. It could raise a challenge to whether there was probable cause to arrest the driver after such investigation.  Finally, a challenge may be raised to the Constitutionality of taking a chemical test without a warrant, which was recently litigated in a number of DWI cases in Minnesota and ultimately the Supreme Court of the United States ruling in |State v. Bernard|. DWI cases are difficult to challenge, but most of the successful litigation and positive case law come from these challenges.

There can also be challenges raised to the science of DWI testing. The state is advancing a scientific test as evidence of a crime, namely operating a motor vehicle while the person has an alcohol concentration above .08. The State thereby “must establish that the test itself is reliable and that its administration in the particular instance conformed to the procedure necessary to ensure reliability. “Without a foundation guaranteeing the test’s reliability, the test result is not probative as a measurement and hence is irrelevant.” State v. Dille, 258 N.W.2d 565, 567 (Minn.1977).  It is very difficult to do this without involving an independent expert regarding the science of alcohol testing. It is often not successful to challenge the reliability of the chemical test as a matter of law before a judge. However, there can be success in challenging it before a jury, because the fact is that precise testing for alcohol concentration is not very good science, and the police officers themselves know very little about it.

However there are also what are known as “affirmative defenses” to DWI.  There are not many, but one in particular which Alex DeMarco recently advanced at trial, and with success, is that of “necessity.”

What is a necessity defense? It’s actually a defense that arises from English Common law and may apply to a number of different crimes and circumstances. Essentially this defense is made in a circumstance where the driver did not want to drive the car, but felt they had to in order to escape an immediate danger. Many lawyers when faced with a case of necessity give up afte researching the case law. That is because there are numerous rulings that have significantly limited when the defense is available. Many published cases deal with circumstances where the trial court ruled the jury could not consider a necessity defense, and the court of appeals and other higher courts found it proper. Such foreboding rulings include the following:


In Minnesota the defense of necessity has been incorporated into several criminal statutes by the legislature. See, Minn.St. 243.52; 609.06; 609.065; and 609.765. In 21 Am.Jur.(2d) Criminal Law, § 99, it is stated that there is some authority to the effect that an act done from compulsion or necessity is not a crime; but the necessity or compulsion which will excuse a criminal act must be clear and conclusive and must arise without negligence or fault on the part of the defendant. Thus, it has been held that the defense of necessity is not available, at least where the defendant could have avoided the emergency by taking advance precautions.”

State v. Johnson, 289 Minn. 196, 183 N.W.2d 541 (1971)


The necessity defense “applies only in emergency situations where the peril is instant, overwhelming, and leaves no alternative but the conduct in question.” State v. Johnson, 289 Minn. 196, 199, 183 N.W.2d 541, 543 (1971). To prove the necessity defense, the defendant must show that (1) she had no legal alternative to breaking the law, (2) the harm to be prevented was imminent, and (3) a direct, causal connection existed between breaking the law and preventing the harm.

State v. Rein, 477 N.W.2d 716, 717 (Minn.App. 1991)

However, with appropriate notice of the defense and witnesses given well in advance, and the right aggressive approach just before trial, and with rock solid testimony regarding the emergency, the defense can force the court into a situation where they have to give the instruction.  What that means is, at the end of the case, when the jury is instructed in the law, they are instructed that they are permitted to consider a defense of necessity, and are apprised of the elements of that defense. It is important to remember that the strength of the defense is not something for the court to consider. Rather, that is for the jury to decide.  All a defendant has to do is make an offer proof  that, if believed, would give the jury something to think about.

“A party is entitled to an instruction if the evidence produced at trial supports the instruction.” State v. Hall, 722 N.W.2d 472, 477 (Minn. 2006).

To be entitled to a jury instruction on the necessity defense, a defendant must make a prima facie showing of necessity. State v. Brodie, 532 N.W.2d 557, 557 (Minn. 1995).

The other thing that makes a necessity defense unique, and the reason why many defense attorneys further shy from such a defense, is that it is one of the few cases where the defense has the burden of proof. This is distinguishable from many other defenses in criminal law, such a self-defense claim in an assault case, where the defense has only the burden of production, meaning it must make a prima facie case the defendant acted in defense from immediate bodily harm or death, and the state has the burden of then proving beyond a reasonable doubt that the act was NOT in self defense.

However, self-defense basically negates an element of the crime, namely the “intent” to inflict bodily arm on someone. Because there is no precise intent element to DWI, and “the alleged necessity in this case does not directly negate an element of the crime, but rather seeks to excuse criminal conduct, [the defendant] ultimately would be required to prove the defense by a preponderance of the evidence.” Johnson citing State v. Hage, 595 N.W.2d 200, 206 (Minn. 1999).

However that preponderance burden is not nearly as high as the the burden placed on the state in criminal proceedings. The defendant need not prove beyond a reasonable doubt that it was necessary to drive the car. The defendant need only prove it is “more likely than not” that the defendant drove for the purpose of avoiding danger. That is a standard known as preponderance of the evidence. Specifically, the defendant must prove that it was more likely than not (1) that she or he had no legal alternative to breaking the law, (2) the harm to be prevented was imminent, and (3) a direct, causal connection existed between breaking the law and preventing the harm. However there is one further element that the defendant must prove, and the wording of this directive is very important. (4) “The harm that would have resulted from compliance with the law would have significantly exceeded the harm actually resulting from the defendant’s breach of the law.” State v. Rein, 477 N.W.2d 716, 717 (Minn.App. 1991).

Many defense lawyers skim this too quickly and see the words “peril” that must be “instant and overwhelming” and think essentially of grievous and deadly harm, and then read this last element and think that comparing the potential consequences of DWI to the consequences of getting punched or other harm is too difficult in most cases.  DWI is a serious crime, after all. People die in drunk driving deaths regularly and there’s hardly any greater consequence than death. But read the language again. “The harm that would have resulted from compliance with the law would have significantly exceeded the harm actually resulting from the defendant’s breach of the law.”  The jury is not permitted to speculate on the worst possible outcome from drinking and driving. Rather, they are permitted to speculate on the harm that might have occurred or that the defendant reasonably thought was about to occur.  They must compare that to the actual harm resulting from this particular incident of alleged drunk driving. Most drunk driving cases do not involve an accident or harm. If that is the case, and there is any solid evidence of a legitimate and imminent danger to the defendant before deciding to drive away from it, then the defense of necessity should be successful, as it was for  a client of Alex DeMarco recently in Dakota County.

If you or someone you know is facing a DWI, contact an experienced and aggressive DWI attorney today. There is little incentive to plead guilty to a DWI, and the consequences of pleading guilty are rarely if ever better than challenging a DWI and at least having a chance at winning it.

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