The Necessity Defense

Posted by Lawrence Taylor on June 11th, 2014

What do you do if you've been drinking too much…and are suddenly confronted with a dangerous situation — possibly a threat to your life?  You try to escape, of course.  But what if the only way to escape is…to jump in your car and flee?


Minneapolis, MN.  June 1 – On Memorial Day weekend 2011, Jennifer Axelberg and her husband, Jason, argued after a night of drinking at a resort. He turned violent, hitting her twice and breaking her car’s windshield after she locked herself in it. She then drove away, about a mile back to the resort. He pursued, and both were soon arrested — she for drunken driving after testing at double the legal blood-alcohol limit.

Axelberg’s driver’s license was revoked. She appealed, saying she should be able to plead “necessity” — a traditional common-law defense.

But writing for the majority, Chief Justice Lorie Skjerven Gildea held that the necessity defense is not available to Axelberg under Minnesota law. The Legislature, Gildea said, has explicity limited the issues courts may consider in an appeal of license revocation — and necessity isn’t one of them…

Three justices dissented emphatically. Each wrote separately and joined the dissents of the others. In what constitutes strong language for this often courteous court, they called the majority’s ruling “stingy” and “slavish” and satirized it as meaning that “losing the privilege to drive is a small price to pay for saving your life.”

Judicial review should not be “mechanical,” they argued, but “a place where justice can be done.”…


So….confronted with such a situation, what would you do?  Drive away and be prosecuted for drunk driving?  Or stay…and get beaten up — or worse? 

The "necessity" defense is a tradiional common law doctrine that can be summarized as:  "A defense that permits a person to act in a criminal manner when an emergency situation, not of the person's own creation, compels the person to act in a criminal manner to avoid greater harm from occurring."       

Sounds reasonable…except, apparently, in MADD's "War on Drunk Driving".

(For a further discussion, see my post The Necessity Defense to DUI.)
 

(Thanks to Joe.)
 

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