While most crimes require intent to break the law, DWI is different. In addition, our DUI laws are some of the toughest in the country. Consequently, a rarely used but available strategy in North Carolina is a “necessity defense” in certain cases.

So What is a Necessity Defense?

necessity defenseBecause DWI laws in North Carolina are so harsh, it is surprising that courts recently reaffirmed the necessity defense. Furthermore, the Court of Appeals in State v. Miller (2018) actually seems to make it easier to claim this defense. To claim “necessity,” you only have to show reasonable response to some threat to a person’s life or health. However, fear of “immediate death or serious bodily injury” is not necessary unlike the “duress” defense. So what is a typical situation? For example, in Miller, the person accused started a fight and then had a gun drawn on him. And even though he created the “necessity” to have to leave, the defense still applied. In addition, the “getaway vehicle” was a golf cart. What a strange and wonderful world we live in?

While any defense is good news for criminal lawyers, how can a necessity defense win in a no intent crime? For example, almost any other scenario (prescription meds or a “mickie” drink) is not an excuse. Rather, if you drive on a public highway or road while impaired, you are guilty of DWI. But here, it seems a “good reason” to leave or get away is enough. Furthermore, the wife had the better argument, but the court nevertheless gave the defendant the requested jury charge. Because favorable rulings are so rare in DWI cases, I welcome another arrow in the quiver. However, it is still somewhat confusing and would seem to open the door to all sorts of claims. In the end, it is still up to the jury to decide if a defense really applies after all.