Can Drunk Driving be Excused by an Emergency Situation?

This week, the ABA Journal reports on a case out of Canada where a judge found the accused not guilty, even though he did drive drunk, because an emergency compelled him to drive his injured friend to the hospital for medical treatment. His friend had gashed his head open on a metal railing after falling down stairs, they were locked out of their apartment and could not access their cellphones, and thus had no reasonable alternative to driving drunk to the hospital.

Cases of this nature fall into two somewhat overlapping categories - "justification defense" cases where an emergency presents a compelling need to drive under the influence, and "duress" defenses where the driver needs to escape a dangerous situation such as a domestic batterer on a rampage.

New Hampshire Law - Justification Defenses in DWI Cases

NH law presents a high burden for a driver claiming "necessity" or "justification" for driving under the influence. A NH statute provides: “Conduct which the actor believes to be necessary to avoid harm to himself or another is justifiable if the desirability and urgency of avoiding harm outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the statute defining the offense charged.” RSA 627:3. This "competing harms" defense existed at common law (judge-made law) but is very narrow: "An individual is protected from prosecution under the competing harms defense if he commits a criminal act that was urgently necessary to avoid a clear and imminent danger.” State v. Fee, 126 N.H. 78 (1985).

There Must be No Reasonable Alternative

According to the NH Supreme Court, the defense of competing harms is "not available to justify unlawful conduct when lawful alternatives exist which will cause less, if any, harm." In an era when most people carry cellphones, the defense should become more difficult to present because calling 911 is a reasonable alternative to driving drunk to the hospital. That is why, in the Canadian case in the news this week, it was critical that the two men were locked out of an apartment and had no cellphone to call for help.

Duress Defenses

With some regularity, a person will claim that she needed to drive under the influence to avoid a dangerous, violent situation, such as a rageful batterer in the home. In these cases, there is no NH statute providing a defense, but there remains a "common law" defense for extreme situations. State v. Daoud, 141 N.H. 142 (1996). The Court determined that at common law, duress "was said to excuse criminal conduct where the actor was under an unlawful threat of imminent death or serious bodily injury, which threat caused the actor to engage in conduct violating the literal terms of the criminal law.” This is a very difficult burden to meet.

Further, the United States Supreme Court recognized that, regardless of the definition of the duress defense, “one principle remains constant: if there is a reasonable, legal alternative to violating the law, a chance both to refuse to do the criminal act and also to avoid the threatened harm, the defense will fail.” United States v. Bailey, 444 U.S. 394 (1980).

These legal standards present a nearly insurmountable barrier for most "duress"-type defenses. Thus, as illustrated by the L'Heureux case discussed next, it may be more fruitful to litigate these cases under the "competing harms" banner.

A Successful "Competing Harms" Defense

In State v. L'Heureux, 150 N.H. 822 (2004), the defendant drove under the influence to avoid a crazed maniac of a neighbor who was menacing people with an automatic weapon (and threatening to use it to shoot a beloved pet). The trial court held that the accused had to show he had "no lawful alternative" to driving under the influence and disallowed the defense because theoretically, the accused could have sought help from a neighbor. The NH Supreme Court reversed the DWI conviction, holding that the defendant must show only that there was "no reasonable alternative" to driving under the influence, not that there was no lawful alternative.

Thus, the L'Heureux case provides the blueprint for DWI defense lawyers who seek to defend their clients in a "competing harms" or "duress" situation.