it is rarely used, but people who commit a crime in Florida can use a necessity defense to avoid charges or be found not guilty of the crime. The defense is rarely used because it basically requires a defendant to establish that he/she needed to commit the crime to avoid the threat of harm or serious bodily injury to him/herself or others. That is not all. In addition to establishing that the crime needed to be committed, the defendant must also show that the defendant did not intentionally or recklessly put him/herself in a position where he needed to commit this crime, the defendant had no other reasonable option but to commit the crime, the harm the defendant was trying to avoid was worse than the crime committed and the defendant stopped the criminal conduct once the necessity was over. As you might expect, outside of a self defense type of scenario, which is its own specific defense, it is very rare for those factors to come together and work for a defendant.
However, when those factors can be argued, a defendant can use a necessity defense to all kinds of criminal charges, including driving under the influence of alcohol or drugs (DUI). In a recent DUI case near Jacksonville, Florida, a defendant attempted to use the necessity defense. A police officer saw him driving at a high rate of speed and driving erratically. The officer conducted a DUI investigation and arrested him for DUI. This was also the defendant’s third DUI in 10 years which comes with enhanced penalties and can be charged as a felony DUI, which is punishable by up to 5 years in prison. At the trial, the defendant admitted that he was driving while impaired from alcohol but argued that he needed to drive in that condition.
The defendant’s story, however, could use some work. He argued that his friend’s cat was sick and he was the only person who could take it to the 24 hour veterinarian’s office. The defendant had the right idea, but this excuse was not nearly sufficient for a necessity defense. As a result, he was convicted of DUI.
However, if an actual person was sick or injured and needed medical attention and a defendant could show that he/she needed to drive while impaired to get that person to the hospital, that could be a legitimate necessity defense to DUI. The state, of course, would likely fight back and cross examine the defendant about other options, but it is a defense that could win with a jury under the right circumstances.