DWI Defendant Asserts Necessity Defense in New Jersey Court

The state has the burden of proving a defendant’s guilt beyond a reasonable doubt in New Jersey criminal cases, as well as cases involving motor vehicle offenses like driving while intoxicated (DWI). Some defenses that a defendant can raise shift the burden of proof, requiring the defendant to produce evidence in support of their defense. These are known as affirmative defenses. The defendant’s burden of proof for an affirmative defense is a preponderance of the evidence, which is lower than the state’s burden. The affirmative defense of necessity, or justification, requires proof by a preponderance of the evidence that their commission of the charged offense was necessary, under the circumstances, to prevent an even greater harm. The New Jersey Appellate Division recently considered how this applies in DWI cases in State v. Han.

New Jersey defines the necessity defense in broad, rather unhelpfully technical terms, stating that an act that might constitute a criminal offense could be “justifiable by reason of necessity to the extent permitted by law.” Court rulings have crafted more practical guidelines for the justification defense, but they do not necessarily apply in DWI cases. As the court notes in Han, DWI is a motor vehicle offense, but the statute defining the necessity defense is found in the New Jersey Code of Criminal Justice. Not all protections afforded in criminal cases are available in motor vehicle cases.

A DWI defendant asserting a necessity defense would essentially be arguing that they should not be held liable for operating a motor vehicle while under the influence of drugs or alcohol, since they only did so to prevent something much worse. The Appellate Division held in State v. Romano that the necessity defense may be available in a DWI case, but only if the facts of the case meet four criteria:

1. There is an emergency situation that is in no way the defendant’s fault;
2. It must be “so imminent and compelling” that the defendant reasonably believes harm will come to them or others;
3. There must be “no reasonable opportunity to avoid the injury without doing the criminal act”; and
4. The potential injury from the emergency must exceed the harm of the illegal action.

The defendant in Han was visiting a bar with her friend, with the friend acting as the “designated driver.” As the two were walking toward the friend’s car, the friend “fell and struck her forehead against a piece of jagged concrete.” She reportedly claimed that she could not breathe because of the bleeding from her forehead, and she insisted that the defendant drive her to the hospital rather than waiting for an ambulance. A police officer pulled the defendant over on the way to the hospital. The officer arrested the defendant and called an ambulance for the friend. The friend’s injury reportedly required 90 stitches.

After the municipal judge rejected a motion to dismiss, the defendant entered a conditional guilty plea. The Law Division also rejected the defendant’s necessity argument, finding that she had not met the requirements of the Romano test. The judge held that other options were available to the defendant besides driving, including “seeking assistance from someone in the bar, which was still open, or…by dialing 9-1-1.” The judge acknowledged the seriousness of the friend’s injury but found that it did not “outmeasure” the offense of DWI. The Appellate Division affirmed these findings.

DWI lawyer Evan Levow has defended people in New Jersey against alleged charges for over 20 years. Contact us online or at (877) 593-1717 today to schedule a free and confidential consultation to discuss your case with a knowledgeable and experienced advocate.

More Blog Posts:

Can a New Jersey DWI Defendant Claim “Insanity” in Court? New Jersey DWI Attorney Blog, February 13, 2017

New Jersey Appellate Court Considers DWI Defendant’s “Confusion” Defense, New Jersey DWI Attorney Blog, August 16, 2016

Defendant in DWI Case Has Burden of Proving Inability to Provide Breath Sample, According to New Jersey Court, New Jersey DWI Attorney Blog, August 6, 2016

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