The
"Choice of Evils" Defense
Information
courtesy of Lawrence Taylor - DUIblog
Let's
say that after dinner -- and too many drinks -- at a friend's house,
your wife is driving you home. She suddenly feels intense pain shooting
up her left arm, swerves off the road and loses consciousness. You
jump behind the wheel and start driving at high speed for the hospital.
As you pull up to the emergency center, a police car follows in
after you, its lights flashing. Shortly afterwards, you are arrested
for drunk driving.
Guilty?
The
courts, as is common in DUI cases, are in considerable disagreement.
Some states recognize the affirmative defense of necessity, or as
it is sometimes called, the choice of evils defense. As one New
Jersey judge observed, "When, as here, there is a collision
between law and common sense, this court should exert its best effort
to vindicate common sense. Our institutional legitimacy depends
on our succeeding in that endeavor." State v. Fogarty, 607
A.2d 624.
Other
courts do not recognize the defense in DUI cases, or severely restrict
its application. In People v. Slack, 258 Cal. Rptr. 702, for example,
the defendant was fleeing across the Mexican border from Tijuana
police who had beaten him in the past. The court held that he had
not adequately shown that there was no alternative to drunk driving,
or that the emergency was not the result of his own conduct. More
to the point, the court said that "the risk of vehicular destruction
is so great that even the risk of physical assault to the intoxicated
person pales in comparison."
Continuing
the inconsistencies, some courts permit the defense in criminal
cases -- but, illogically, not in license suspensions. As one California
court has held:
(The)
relevant statutes and their clear public policy preclude the application
of the necessity defense to administrative hearings....In contrast
to criminal prosecution for drunk driving, the administrative
remedy involving the suspension of driver's licenses was designed
to be a "swift and certain" method of deterring such
conduct.
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