The Necessity Defense to a DUI

Could driving while intoxicated due to a medical emergency be a defense to DUI in Arizona?

At times, a situation will arise in which a person is required to do something illegal in order to prevent a serious harm. Such a situation may give rise to the so-called defense of necessity, though this defense is not recognized in every jurisdiction.  For instance, a defendant charged with a DUI while driving his pregnant wife in labor to the hospital could potentially attempt to raise a defense of necessity.  A successful necessity defense is difficult to establish, if not impossible in some states that refuse to recognize such a defense.  However, for the right scenario it could mean the difference between a conviction and walking free.  Our Phoenix, Arizona DUI defense lawyers explore the necessity defense and Arizona’s stance on such a defense below.

Elements to the Necessity Defense

The necessity defense varies greatly by state and jurisdiction. Some states have a clear outlined defense, while in other states the defense has been created through case law.  In yet other states, courts have considered the necessity defense and either rejected it entirely or only adopted it for limited crimes.  In general, a necessity defense will require a showing that there was some sort of specific threat of imminent danger that required immediate action.  There needs to have been no other practical alternative to the act, and the defendant must have acted out of necessity at all times.  Further, the harm caused must not outweigh the harm prevented.

In the example of the intoxicated driver who elected to drive his wife who was in labor to the hospital, it is easy to see why the defense could fail.  First, though there was an imminent need to transport the wife to the hospital and immediate action was required, in most situations there would be alternatives to driving drunk.  The intoxicated husband could have called an ambulance, taxi, or friend.  Nonetheless, under the right circumstances, it is theoretically possible a case involving similar facts could raise a successful necessity defense in a jurisdiction open to the defense.

Arizona’s Stance on the DUI Necessity Defense

Thus far, at least some Arizona courts have considered and rejected the necessity defense when it comes to the crime of DUI.  In the case of State v. Fell, 203 Ariz. 186, 52 P.3d 218 (App. 2002), the Court of Appeals of Arizona in Division Two considered and rejected any sort of justification defense when it comes to DUIs.  The facts of the case are as follows:  the defendant was assaulted by her husband who then left the house.  Fearing that her husband would return and further harm her, the defendant left and drove away from the home. She was unfortunately stopped and arrested for a DUI.  Her defense attorney attempted to raise the necessity defense, stating that she was necessarily driven from the home due to concerns for her safety.

The appellate court ultimately rejected the defense, finding that Arizona’s necessity defense does not apply to crimes within the DUI statute.  Specifically, the defense of justification or necessity is found within Title 13 of the criminal code, and it states that it applies to any crimes defined within that title. However, a DUI is defined in Title 28 of the Arizona Revised Statutes, which title does not outline a justification defense.

While this case failed due to a reading into the legislative intent, it does not preclude raising the defense of necessity in a case with strong facts that so warrant it.  A different appellate court or a review of differing facts could lead to an alternative outcome. Consult with your DUI defense lawyer to determine whether you may have a viable justification defense.