After having a few too many drinks, many people lower their inhibitions and may engage in risky behavior. This can sometimes lead to reckless behavior and unnecessary accidents. It is helpful to have a sober friend around to make sure any serious accidents or injuries are addressed or to drive someone to the hospital, if necessary. However, that may not always be possible.
For example, if some college friends are drinking around a bonfire and someone decides it'd be a good idea to jump over the fire but trips and falls, suffering severe burns on their hands and face. Under normal circumstances, you might get in the car and go to the emergency room. But what if everyone at the party has been drinking? Is it better to risk a drunk driving arrest or accident in order to get to the hospital?
There are several legal defenses available to charges of drunk driving in California. If you want to know about how you can avoid a criminal conviction or jail time after a DUI arrest, talk to your experienced East Bay DUI defense attorney for help.
Choice of Evils and Drunk Driving
When you have to make a choice between two less-than-ideal events, including unlawful activity, it can be known as a “choice of evils” defense. For example, Erin leaves a restaurant and sees an ex waiting by the car. The ex is subject to a restraining order and has threatened violence. Erin sees a car at the valet parking empty and idling.
The ex begins chasing after Erin with a knife. Erin gets in the valet car and drives away. In this case, Erin could be accused of stealing the car. However, a choice of evils defense may allow Erin to avoid charges for vehicle theft because it was reasonably necessary to avoid a greater, imminent harm.
Necessity Defense in a DUI Case
In California, the necessity defense can be used when the defendant can allege they engaged in some illegal activity out of necessity to avoid greater harm. For example, a defendant who was arrested for drunk driving may be able to claim this defense if they were driving someone with a serious injury to the emergency room and driving while impaired was the only reasonable option.
Model Jury Instructions - Necessity Defense
Under the California Criminal Jury Instruction 3403, a defendant is not guilty of the alleged crime if they acted because of legal necessity. To establish a necessity defense, the defendant must prove:
- They acted in an emergency to prevent a significant bodily harm or evil to themself or someone else;
- They had no adequate legal alternative;
- The defendant's acts did not create a greater danger than the one avoided;
- When the defendant acted, they actually believed that the act was necessary to prevent the threatened harm or evil;
- A reasonable person would also have believed that the act was necessary under the circumstances; and
- The defendant did not substantially contribute to the emergency.
Proving Your Emergency Case
It is one thing to claim an emergency necessity but the defendant has the burden of proving the elements of the defense by a preponderance of the evidence. The defendant has to show that it is more likely than not that each of the 6 elements is true. This can be difficult when there may have been other alternatives available but the impaired driver simply made a poor decision.
For example, driving someone to the ER may sound like the best decision in an emergency. However, it may have been a better (and legal) alternative to call 9-1-1 and wait for emergency responders to show up and care for the injured person.
Creating a Greater Danger
Other factors may also apply to negate the defense. For example, if the person who drives had a high blood alcohol content (BAC), driving may be considered more dangerous than a driver who may have had one beer too many. When the high-BAC driver gets behind the wheel, that may create a greater danger than the one avoided.
Necessary Under the Circumstances
The emergency must also be objective to a reasonable person. For example, if a high school student had been drinking and needed to get home by a certain time because they would get into big trouble with their parents. The student may have thought it was an emergency but a reasonable person would not likely think driving drunk was a lesser danger than getting grounded by the student's parents.
The emergency must also be something that would prevent “significant bodily harm or evil” to themself or someone else. Significant body harm or evil may include physical battery, serious bodily injury, or sexual assault. A minor injury may not be enough to justify the necessity defense. Inconvenience or financial cost will generally not justify an emergency. For example, driving home after drinking instead of paying for a very expensive cab ride will not likely be justified.
Before Emergency Driving Necessity
It may be difficult to consider all the alternatives and balance the justification to drive after drinking alcohol or feeling impaired by drugs. If you are considering driving while buzzed or high, consider not only the necessity of driving but also the consequences of a drunk driving arrest. Just because you feel like driving was necessary does not mean that a jury will agree.
- Are you or someone else facing immediate significant bodily harm or injury? If the threat is not immediate or serious enough, it may not qualify as a necessity.
- Is there an adequate legal alternative? Can you call 9-1-1? Can you get a taxi, Uber, or call a friend? Is someone else in a better position to drive? If there is an adequate alternative, it may not be a necessity.
- Do your actions create a greater danger than the one avoided? Balancing the two evils, is driving more dangerous than choosing the other path?
- Do you actually believe that the act is necessary to prevent the threatened harm or evil? Are you trying to justify driving and exaggerating the emergency or is there a serious threat of immediate harm?
- Would a reasonable person believe the act was necessary under the circumstances? Would someone else believe you had to take similar actions under the circumstances?
- Did you contribute to the emergency? If you helped contribute to the emergency, you may not be able to take advantage of the necessity defense.
East Bay DUI Attorney
East Bay attorney Lynn Gorelick has more than 38 years of DUI experience and understands the defenses that work in a California DUI case. Representing drivers and their families in Oakland and Alameda County, Lynn Gorelick is familiar with the local DUI laws, and the local officers and prosecutors involved. Contact East Bay DUI lawyer Lynn Gorelick today.