DUI and the Necessity Defense

Nevada is one of the few jurisdictions where you can legally argue necessity as a defense to a charge of DUI (that it was necessary for you to drive while you were under the influence). This defense was recently discussed and found valid in Hoagland v. State, 126 Nev. Adv. Op. 61 (2010).

On that case, Mr. Hoagland was asleep in his car in the employee parking lot of the Salvation Army. A Salvation Army officer approached the car told Mr. Hoagland that he could not sleep on the property and asked Mr. Hoagland to move his car to another location. Mr. Hoagland was living out of his truck and believed that his car and belongings would be towed if he did not comply.

While moving the truck, Mr. Hoagland backed into a parked car. The police were called to the scene and subsequently arrested Mr. Hoagland for driving or being in actual physical control of a vehicle while under the influence.

At trial, Mr. Hoagland wanted a jury instruction which would allow the jury to consider whether he was required to move his truck as a matter of necessity and was therefore, not guilty of DUI. The trial judge denied the request. Mr. Hoagland then plead guilty, reserved his right to appeal, and made the following offer of proof.

Mr. Hoagland argued that it was necessary for him to move the truck because: (1) he had no intention of moving his truck until the security officer told him to do so; (2) he could not have driven the truck because someone else had his keys and only gave them to him after he was told to move the car; and (3) he feared that if his truck was impounded that he could not afford the impound fees and would lose his shelter and belongings.

On appeal, the Nevada Supreme Court found that the necessity defense exists as a matter of due process; however, they did not find that Mr. Hoagland presented sufficient facts to show that the jury should have been instructed on this defense in his case. The key element in cases involving a necessity defense is whether the defendant showed that he did not substantially contribute to the emergency. They concluded that Mr. Hoagland's actions of parking in the employee parking lot created the situation where he was required to move his car while he was intoxicated.
If you think you have a possible defense of necessity, call us now to discuss your case.







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