There is a statutory defense of necessity which can be asserted as a defense to criminal conduct where applicable. It can be asserted where the conduct in question was arguably necessary to prevent or avoid some more serious imminent harm. And as the Court of Criminal Appeals noted in the recent DUI case of State v. Medley, E2012-00646-CCA-R3-CD (Tenn.Crim.App. 10-17-2012), the defense of necessity can be asserted even when also asserting no criminal conduct occurred.

In the Medley case, the Defendant was facing a probation violation based upon evidence that he committed a DUI while on probation. So the trial court (rather than a jury) was the finder of fact in a probation revocation hearing regarding the facts of the DUI.

A State Trooper responded to a call of a domestic dispute inside a vehicle and found the Defendant and a female passenger who was bleeding from the head. The Defendant said the passenger had been struck by a tree limb. According to the State Trooper, the Defendant told him the injury had occurred while he was driving. The location of blood in the vehicle corroborated that. The Defendant, at the revocation hearing, acknowledged that he was drunk on the night in question but claimed he had not been driving. He testified his girlfriend had been driving when she was injured. Then he got in the driver’s seat to drive her to the hospital. Then changed his mind and called 911 instead, without doing any driving.

The Defense argued that if the trial court found the Defendant had been driving while intoxicated, the necessity defense applied, as it was necessary to get the girlfriend to the hospital. The trial court ruled the necessity defense could not apply because the Defendant did not acknowledge he had driven at all. Then the trial court concluded the Defendant had indeed committed a DUI.

On appeal, the Court of Criminal Appeals agreed with the Defense that alternative theories of actual innocence and necessity are permissible. However, the outcome was affirmed anyway. The trial court, as the finder of fact, had found the State Trooper’s testimony credible that the Defendant had told him the passenger was injured while the Defendant was driving. So a DUI had been committed prior to the girlfriend’s injury. The Court did not have to reach the question of whether the seriousness of the girlfriend’s injury and her need to be driven to the hospital justified the commission of a DUI in this case.

If you have questions about what defenses or justifications may be available under the facts of a particular case, contact The Lanzon Firm.