In some situations, a defendant in a criminal case can claim that their actions were justified under the specific circumstances that existed at the time of the alleged offense, since they were necessary to avoid or prevent a different crime or injury that would have been objectively worse. This is generally known as the defense of “necessity.” It comes up occasionally in New Jersey driving while intoxicated (DWI) cases. Successfully arguing this in court can be very difficult, as indicated by several recent decisions from the New Jersey Superior Court, Appellate Division. Its ruling in State v. Giaquinto, issued in June 2015, offers a particularly stark example of this.
The court’s opinion in Giaquinto, unlike most appellate opinions, has a certain dramatic flair, perhaps because of the harrowing details of the case. Police in Sparta Township responded to a report of a hit-and-run at about 1:00 a.m. and located the defendant’s car “traveling at a very low rate of speed.” The defendant reportedly had “scratches on her legs and [was] wearing nothing but a leather jacket.” The officer testified that the defendant had slurred speech and “a strong odor of alcohol,” and she denied hitting a wall in her car or being naked. The officer eventually convinced her to put on a dress he saw in the backseat. She reportedly failed several field sobriety tests and failed to provide sufficient breath for the Alcotest. Another officer testified that she “rang[ed] from calm and cooperative to belligerent and verbally abusive.”
At trial, the defendant testified that, on the night of her arrest, she met an acquaintance identified as Maggie at about 7:15 p.m. at a restaurant, where she drank two martinis. She then went to Maggie’s house at 10:00 p.m. “to meet her dog, the same breed as defendant’s.” The defendant said Maggie gave her a glass of wine that tasted “bizarre.” She claimed to have little memory of the rest of the night, except for “spotty” memories of a sexual assault.
Although a medical expert testified on the defendant’s behalf that the police should have taken her to the hospital after her arrest to determine the cause of her condition, the municipal court judge ruled that her demeanor was consistent with intoxication caused by alcohol, based on the officers’ testimony. The judge rejected her necessity defense and found her guilty of DWI, refusal to provide a breath sample, careless driving, and other offenses.
In a 1986 decision, State v. Tate, the New Jersey Supreme Court described the necessity defense as a “choice of evils,” stating that an offense may be justified “if the evil avoided is greater than that sought to be avoided by the law defining the offense committed.” The Appellate Division applied this to DWI in State v. Romano in 2002, finding that, among other requirements, a defendant must face an “imminent and compelling” emergency raising a “reasonable expectation of harm” to the defendant or another person.
Romano involved a man who drove 350 yards to escape an assault and then asked for help when police pulled him over. The appellate court in the present case was not convinced by the defendant’s claims, noting that she did not mention the sexual assault until six months later, when the case went to trial. This places a burden on a defendant claiming necessity to report the situation immediately or as soon as possible. The court speculated that “a fleeing sexual assault victim would presumably be relieved to see a police officer and report the assault.” It further noted that she could have reported the assault the following day and sought medical help, but she apparently did not do so. It therefore concluded that the danger was neither imminent not compelling, and the defendant was no longer justified in driving.
The experienced and skilled DWI attorneys at Levow DWI Law, P.C. have dedicated our entire practice to defending people charged with DWI in New Jersey. Contact us online or at (877) 975-3399 today to schedule a free and confidential consultation with a member of our team.
More Blog Posts:
Is a “Necessity” Defense Possible in a New Jersey DWI Case? New Jersey DWI Attorney Blog, August 3, 2015
New Jersey Appellate Court Finds Guilty Plea Insufficient in DWI Case from 11 Years Ago, Orders New Trial, New Jersey DWI Attorney Blog, July 16, 2015
New Jersey Considers “Excusable Neglect” Argument by Defendant Who Sought Post-Conviction Relief More than Two Decades After DWI Case, New Jersey DWI Attorney Blog, July 1, 2015