‘Necessity’ as a defense against Nevada DUI charges is where the defendant argues that their DUI should be excused because an emergency called for it. The necessity defense can be used if the defendant can show that they drove under the influence to avoid greater harm or that the benefits outweighed the risks to society.
If the court or jury agrees that the situation was, in fact, a necessity, the DUI Charges can be dismissed.
The three common scenarios where the necessity defense is raised in DUI cases is if:
- A dying person being driven to the hospital
- A harmful person, such as a killer, was chasing the driver
- The driver was trying to escape a natural disaster
When Can You Assert the Complete Necessity Defense?
Necessity is very rarely used because few situations can rise to the level of urgency that necessity requires. However, under the proper circumstances, the defense can be very effective.
With necessity as a defense, the defendant admits to driving under the influence, but argues that after exploring all other options, extenuating circumstances required them to get behind the wheel while intoxicated.
Nevada law is vague on what is required for a successful necessity defense. However, Nevada law is clear that it requires the defendant did not create the emergency situation that required them to drive under the influence in the first place.
Therefore, a necessity as a defense against Nevada DUI charges works in a very narrow set of circumstances where an emergency scenario emerges without any involvement from the defendant.
Example:
Melissa leaves a Las Vegas club in a cab. On her way home, she gets into a car accident because another driver crashes into the cab she is sitting in. The cab driver and the other driver are severely injured, but Melissa is safe.
She calls 911, but there is no signal, and there are no other cars around. Due to the severity of the other drivers’ injuries, she drives them to the closest ER.
On the way there, the Las Vegas Metropolitan Police stop her, and she is flagged for the breath test. An ambulance was called for the two injured drivers, but she was arrested for DUI.
In this example, Melissa does not try to hide that she is drunk. Since (1) she did not create the emergency, (2) the situation was dire, and (3) she took every possible action to avoid driving, Melissa may raise the necessity defense against her DUI charge.
What is Imperfect Necessity Defense?
The imperfect necessity defense, also known as the “choice of the lesser evils” defense, is a legal principle that allows individuals to justify their actions when if they had not committed the offense, more significant harm would have resulted.
Some jurisdictions recognize the necessity defense, although the specific criteria and applicability may vary. In Nevada, the imperfect necessity defense has little chance of success.
The imperfect necessity defense acknowledges that the defendant had alternatives but chose to commit a lesser offense due to the circumstances.
The defense typically involves the following elements:
- An imminent threat – The defendant must demonstrate that there was an immediate and real threat of significant harm or danger. This threat should be such that a reasonable person in the same situation would perceive it as a genuine risk.
- A proportional response – The defendant must show that the criminal act they committed was a reasonable response to the imminent threat and that no other feasible alternatives would have effectively prevented the harm.
- A subjective belief – The defendant’s belief in the necessity of their actions must be genuine and subjective. They must genuinely believe committing the lesser offense was necessary to prevent greater harm.
- A reasonable person standard – The court assesses the defendant’s actions based on the standard of a reasonable person facing the same circumstances. If a reasonable person would have made a similar choice, the imperfect necessity defense may apply.
In our previous example, if Melissa had not tried to call 911 or find another driver to take over the wheel, the case would have been one of imperfect necessity – that is, she had alternatives but chose not to take them.
What If the DUI Case Goes to Trial?
A valid necessity defense will usually first go to the prosecution. The DA may agree to dismiss the charge or reduce it to a lesser offense if the necessity is valid. However, if the question of the emergency or necessity being valid arises, the defendant may need to go to court.
There, the defense will have to call witnesses and present any evidence that the DUI was committed out of necessity. The defendant may be acquitted if the judge or jury agrees that the evidence is sufficient.
Arrested for DUI? We Can Help!
If you’re facing drunk driving charges in Nevada, team at The Bourassa Law Group can help. We can help you use necessity and other DUI defenses to help get you the best possible outcome for your case by through the expertise of our seasoned attorneys.