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The necessity defense in a DWI case

There are numerous defenses available to those on trial for DWI. One strategy worth considering is the necessity defense, which is when you argue driving under the influence of alcohol was necessary for the public good. However, it is important to remember this defense will not be right for everyone. 

One can argue driving while intoxicated was necessary due to the belief that "the law ought to promote the achievement of higher values at the expense of lesser values." This language comes from the court case State v. Thomas, which is a public policy stating people may be able to break the law when there is a necessity for it. For example, a medical emergency necessitating driving someone to the hospital could allow a person to get away with certain actions that ordinarily the court would not permit. 

Elements that need to be present

There are three elements a person needs to have a chance of a successful necessity defense. The first is that it was a reasonable action. This does not mean it has to be a perfect action, but it should have seemed reasonable at the moment the person had to make it. This can involve whether calling 9-1-1 was readily available and the overall seriousness of the threat. 

Next, the action needed to be necessary to protect the health, limb or life of another person. The necessity defense will not work if a person merely wanted to protect property. However, if someone's life was at risk and driving intoxicated could get the person to the hospital, then the necessity defense may come into play.

Finally, no other acceptable choices were possible at the moment. This is extremely difficult to come up with. The prosecution will come up with many alternatives the person could have made. There are numerous defenses available to those going to trial for DWI, and it is worth considering them all.


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Super Lawyers Board Certified Specialist | North Carolina State Bar | Federal / State Criminal Law
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