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Necessity Defense

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Florida’s Take On The Necessity Defense

In The Context Of A DUI Charge

Under certain circumstances, any individual charged with DUI in Florida may argue that they were justified in driving under the influence due to an emergency situation. As explained by the Fifth District Court of Appeal in Florida in Driggers v. State, there are six elements to the defense of necessity:

  1. The defendant must reasonably believe there was danger or an emergency existed that was not intentionally caused by the suspect
  2. The danger or threat of danger must be “real, imminent, and impending”
  3. The danger or emergency must threaten significant harm to themselves or another person
  4. The defendant must have had no other way to avoid the emergency or danger except by committing the crime
  5. The crime must have been committed out of duress, with the purpose of avoiding the danger or emergency
  6. The harm the defendant potentially avoids must outweigh any potential harm caused by committing the crime

In Newsome v. State, a trial court ruled that in favor of a man claiming that it was necessary for him to move the car from the middle of the highway after the driver apparently exited the vehicle due to an argument moments earlier. In Clements v. State, another Florida trial court ruled in favor of a man who entered his vehicle to seek shelter during a storm, fell asleep, and was later found by police and arrested for DUI; the court heldDUI |Driggers v. State | Brooks v. State the defendant was entitled to a jury instruction which informed the jury that the defense of necessity was available in that specific case. More recently in Brooks v. State, the Second District Court of Appeal in Florida considered the application of the necessity defense involving a sick animal.

Driving 84 miles per hour in a designated 55 mile-per-hour area, and veering across three lanes to reach his exit ramp, Brooks was spotted by police and pulled over. After he failed a field sobriety test given by police, and his Breathalyzer test showed his BAC to be above the legal limit, he was arrested and charged with felony DUI.

When the case went to trial, Brooks admitted he had been driving under the influence, but claimed it was because his friend’s cat was very sick and he was the only one available to drive to the emergency veterinarian clinic. The court confirmed that the cat was very ill, and he was pulled over near the emergency clinic; the passenger of the car pleaded with the police to allow them to continue to the clinic, as his cat was nearly dead. Police denied the passenger’s request; the cat died shortly after. The trial court denied Brook’s request that the jury be instructed on a necessity defense. Brooks was found guilty and shortly after he appealed the verdict.

The Second District Court of Appeal agreed with the lower court’s decision. In their explanation of the requirements for a necessity defense, “..the defendant must reasonably believe that his action was necessary to avoid an imminent threat of danger or serious bodily injury to himself or others.” According to the Court, the term “others” only applied to humans, and unfortunately did not include a sick cat; the court also acknowledged it was understandable to try and help a sick animal, but the necessity defense still could not apply.

If you have been charged with DUI in Florida, an experienced criminal defense attorney on your side is imperative. Fort Lauderdale criminal defense attorney Kenneth Padowitz aggressively represents those accused of DUI. The defense of necessity is one of many potential defenses in a case of DUI. Kenneth Padowitz, P.A. represents clients throughout Broward County and all of South Florida, including: Fort Lauderdale, Miami, Palm Beach, Boca Raton, Weston, Parkland, Cooper City, and Coral Springs. Contact our DUI attorney to discuss this important matter.