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The "Choice of Evils" Defense

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.


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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