STATE OF NORTH CAROLINA
THE GENERAL COURT OF JUSTICE
DISTRICT COURT DIVISION
__________ COUNTY
FILE NO:
STATE OF NORTH CAROLINA
vs.
DEFENDANT,
MEMORANDUM OF LAW
)
BACKGROUND
On September 12, 2007, the Defendant,, was arrested and charged
inter alia with Driving While Impaired in violation N.C.G.S. sec. 20-138.1.
QUESTION PRESENTED
Does North Carolina recognized the defense of coercion/duress/necessity in Driving While
Impaired cases? If so, is defendant entitled to a verdict of not guilty in this case?
ARGUMENT
In State v. Borland, 21 N.C. App. 559, 205 S.E.2d 340 (1974) the Court of Appeals recognized
the defense of compulsion/duress in a motor vehicle case. In that case the defendant was convicted in
the Superior Court of Carteret County of reckless driving and speeding 110/60. The evidence
revealed the Defendant was driving recklessly and at a speed in excess of 110 mph while being pursued
by a Deputy Sheriff from Carteret County. The evidence further revealed that the deputy's car was not
equipped with any siren, blue light, or any insignia of any kind indicating it was a law enforcement
vehicle. Other evidence indicated the deputy sheriff fired gunshots in the air during the chase. The
Defendant admitted his speed during the chase but contended that he had no idea he was being chased
by a law enforcement officer and was violating no law when the chase began. The Defendant further
testified that he did not stop at a well-lighted location because he did not think that would prevent his
getting shot if the man wanted to shoot him.
In reversing the conviction, the Court of Appeals held that the defendant was entitled to have
the jury instructed that if they believed the defendant did not know the pursuing car was a law
enforcement officer.....he had the right to attempt to evade the pursuers when he had reasonable
grounds to fear for his safety (emphasis added). This is the first North Carolina to recognize the
defense of compulsion, necessity, or duress in a motor vehicle case.
In State v. Hudgins, 167 N.C. App. 705, 606 S.E.2d 443 (2005) the Court of Appeals
recognized the defense of necessity in an impaired driving case. The Defendant was placed on trial for
the offense of habitual impaired driving and DWLR. The State's evidence at trial revealed the defendant
was driving a motor vehicle which was involved in a motor vehicle accident. The defendant was
arrested and blew a .26 on the intoxilyzer. The Defendant admitted he was impaired but indicated he
was riding as a passenger in a truck driven by a friend. Defendant testified that his friend stopped the
truck on the side of the road to examine a dead tree. Defendant further testified that after he and his
friend exited the truck, it began rolling down the road. Defendant indicated he ran to the truck and
began pumping the brakes to no avail. As defendant approached a sharp curve, defendant steered the
vehicle across the road whereupon an accident occurred. Defendant was convicted of habitual impaired
driving and DWLR and was sentenced to prison. At trial defendant requested an instruction on the
defense of "necessity" which was refused by the trial court. In reversing the conviction the Court of
Appeals stated since the record contained substantial evidence of each element of the necessity defense,
the trial judge should have instructed the jury on that defense. The Court said failure to do so was
reversible error.
In discussing the defense of necessity/coercion/duress the Court stated that the Court had
previously implicitly acknowledged the defense of duress in State v. Cooke, 94 N.C. App. 386, 387,
380 S.E.2d 382, 383 (1988) when it stated, "The trial court was correct in refusing to instruct the jury
on the defense of coercion, compulsion or duress as there was no evidence that defendant faced
threatening conduct or any kind at the time the officer saw him driving while intoxicated." (Emphasis
added).
The Court recognized with respect to a defense of necessity that, "{a} person is excused from
criminal liability if he acts under a duress of circumstances to protect life or limb or health in a
reasonable manner and with no other acceptable choice.' " State v. Thomas, 103 N.C. App. 264, 265,
405 S.E.2d 214, 215 (1991). The Hudgins Court went on to say, "Our Supreme Court long ago
restricted the necessity defense to situations where a 'human being was thereby saved from death or
peril (emphasis added) or relieved from severe suffering." quoting State v. Brown, 109 N.C. 802, 807,
13 S.E. 940, 942 (1891).
In discussing the defenses of necessity/coercion/duress in Hudgins, the Court of Appeals cited
cases from other jurisdictions which have specifically held that the defense of necessity is available in
a DWI prosecution. In Stodgill v. State, 881 So.2d 885 (Miss. Ct. App. 2004), the Court of Appeals
of Mississippi held that the defendant's action of DWI could be excused as necessary where defendant's
girlfriend became severely ill, girlfriend was in secluded area, attempts to summon help had been
fruitless and time was of the essence in obtaining medical help for the victim. In discussing the defense
of necessity, the Court stated:
"Necessity is a defense which, if applicable, will excuse conduct which
would otherwise be criminal in nature. The defense requires a showing of a
reasonable belief of imminent serious danger to one's self or another from a
specific harm. In making this determination, three elements must be established
by the defendant: (1) the act charged must have been done to prevent a significant
evil; (2) there must have been no adequate alternative; and (3) the harm caused
must not have been disproportionate to the harm avoided." (Citations omitted).
State v. Shotton, 142 Vt. 558, 458 A.2d 1105 (1983) is another case cited by the Court of
Appeals in Hudgins, supra. In Shotton, the defendant was stopped by a State Trooper for erratic
driving, noticed she was impaired, and arrested her for DWI. The defendant was taken to the police
department where she refused the intoxilyzer. The defendant testified she had been assaulted and
pushed down a flight of stairs by her husband. She testified that her telephone was disconnected so
she could not use it to call for help. She further indicated that she did not want to walk to neighbors'
houses out of fear no one would have been home. She indicated she therefore drove her vehicle to get
to the hospital for treatment. After the defendant was processed for DWI, she was taken to the hospital
where it was determined she had multiple rib fractures. Defense counsel requested a charge on the
defense of necessity which was refused by the trial court. In reversing the conviction the Vermont
Court of Appeals stated:
"The evidence presented at trial was sufficient to raise a question of
fact for the jury as to whether defendant drove because if was reasonably
conceived by her to have been a necessity; accordingly, an instruction on the
issue should have been given upon request."
The Court further discussed the elements of the defense of necessity and stated ruled that the
elements of that defense were as follows:
"(1) there must be a situation of emergency arising without fault on the part
of the actor concerned;
(2) this emergency must be so imminent and compelling as to raise a reasonable
expectation of harm, either directly to the actor or upon those he was protecting;
(3) this emergency must present no reasonable opportunity to avoid the injury
without doing the criminal act; and
(4) the injury impending from the emergency must be of sufficient seriousness to
outmeasure the criminal wrong."
People v. Pena, 149 Cal. App.3d Supp. 14 (1983) is another case which recognized the
duress/necessity defense and which was cited by the Court of Appeals in Hudgins, supra. In Pena
the evidence was essentially undisputed. A Los Angeles County Sheriff's deputy observed defendant
and his girlfriend asleep in a parked car and decided to investigate. He approached the car and smelled
the odor of alcohol coming from the vehicle. He thereafter ordered the defendant and his girlfriend to
exit the vehicle and demanded to see their identification. Following this he undertook a search of each
to ascertain if either were in possession of any weapons. Defendant's girlfriend was dressed in an
unusual manner, wearing a long fur coat and only a brief see through teddy thereunder. Defendant's
girlfriend indicated she and defendant had attended a Halloween costume party earlier in the evening.
The deputy ordered defendant's girlfriend to open her coat on at least 2 occasions and ordered her to
keep it open on the last occasion. The deputy examined her body with a flashlight and ordered her to
turn around whereupon he continued his examination from the rear. The deputy then order defendant's
girlfriend to enter his vehicle so he could take her home indicating in testimony he was doing this for
her protection. For obvious reasons, the defendant became concerned and followed the deputy in the
vehicle he had been in earlier. Defendant testified his reason for doing so was fear for her safety. When
the deputy arrived at the girlfriend's house, he arrested the defendant for DWI. Defendant was
processed and blew a .15 on the intoxilyzer. At trial the court refused to instruct the jury on the
defense of duress/justification. In reversing the conviction California Appellate held that the failure to
instruct the jury on the defense of justification constituted prejudicial error.
In discussing this defense the Court set out what must be shown by the defendant in order to
be entitled to an acquittal:
(1) A genuine belief that his girlfriend was in danger of assault;
(2) A good faith belief which was objectively reasonable;
(3) That defendant operated his vehicle in obedience to her fear for
his girlfriend's safety and not for any other reason;
(4) No opportunity to engage alternative legal means of protecting
his girlfriend from the danger he believed she faced;
(5) That defendant was not substantially at fault in the creation of the
emergency situation which defendant claims justified his actions in
driving while impaired.
The North Carolina jury instructions (attached) indicate that when the defense of
compulsion/duress/coercion is raised, the burden of proof is upon the defendant and need be proven
only to the satisfaction of the jury. These instructions indicate:
"The defendant would not be guilty of this crime if his actions
were caused by a reasonable fear that he or another would
suffer immediate or serious bodily injury if he did not commit
any crime. His assertion of compulsion/duress/coercion is a
denial that he committed any crime. The burden remains on
the State to prove the defendant's guilt beyond a reasonable
doubt."
In the case before the Court, the evidence clearly reveals that the defendant was reasonably in
fear for her own safety. The actions of her ex-boyfriend in banging on the window of her vehicle after
previously having assaulted her created a reasonable apprehension of immediate serious bodily harm
if she did not leave the Duck's parking lot. The situation presented no reasonable opportunity to avoid
the injury without doing the criminal act. Her actions in leaving the parking lot and driving around the
block to avoid injury were certainly reasonable, and under this particular set of circumstances were
justified. For this reason the defendant respectfully requests the Court to enter a verdict of not guilty.
Respectfully submitted,
This the ____ day of _______________________, 20______.
___________________
Attorney for the Defendant