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Criminal Practice – DWI – Defense of Necessity – Domestic Violence

State v. Kapec (Lawyers Weekly No. 14-16-0491, 13 pp.) (Sanford Steelman Jr., J.) Appealed from New Hanover County Superior Court (W. Allen Cobb Jr., J.) N.C. App. Unpub.

Holding: Defendant drove drunk for two and a half blocks in order to escape domestic violence; she was entitled to a jury instruction on the defense of necessity.

Defendant is awarded a new trial.

Defendant, a police officer, and defendant’s friend Michelle Steele all testified that defendant had been the victim of domestic violence perpetrated by Jesse Cayson in the recent past. Defendant and Ms. Steele explained that Mr. Cayson became violent when he drank.

On the night of defendant’s arrest, Mr. Cayson was drunk, became angry, and tried to prevent defendant from leaving. Defendant, who had also been drinking, got to her car and called Ms. Steele. Ms. Steele told defendant to drive “a couple of blocks” and wait for Ms. Steele to pick her up.

Defendant left, and Mr. Cayson called the police to report that she was driving drunk.

When defendant had driven two and a half blocks – before Ms. Steele could even get dressed to leave – defendant was stopped by the arresting officer. Defendant was crying and upset. She told the officer that she did not want to be driving but that she wanted to get away from Mr. Cayson.

In State v. Hudgins, 167 N.C. App. 705, 606 S.E.2d 443 (2005), this court held “that the defense of necessity is available in a DWI prosecution” and that a “defendant must prove three elements to establish the defense of necessity: (1) reasonable action, (2) taken to protect life, limb, or health of a person, and (3) no other acceptable choices available.”

Here, the evidence was sufficient to require an instruction on the defense of necessity, and the trial court erred by denying defendant’s request for the instruction.

During the charge conference, the trial court indicated that it was denying defendant’s request because the court believed that, at the time defendant drove away from Mr. Cayson’s house, she had a reasonable alternative available of dialing 911 and waiting for the arrival of law enforcement officers. In making this determination, the trial court was resolving issues of fact regarding the credibility of defendant’s evidence, the degree of immediate danger presented by Mr. Cayson, and the likelihood of her being assaulted while she waited for law enforcement officers to respond to her call. Factual determinations pertinent to the defense of necessity are in the purview of the jury.

The factual issues for the jury’s determination included the credibility of the witnesses and whether the believable evidence established the elements of the defense of necessity. Also, it was a question of fact for the jury as to whether defendant’s continuing to drive another couple of blocks after Officer Mobley turned on his blue light constituted impaired driving that was not excused by any necessity, or whether defendant was simply finding the nearest safe place to pull off the road.

Since defendant was stopped about three blocks from Mr. Cayson’s house and within five minutes of leaving, State v. Cooke, 94 N.C. App. 386, 380 S.E.2d 382 (1989) – in which the defendant drove drunk for 30 minutes before being stopped – is distinguishable and does not control the outcome of the present case.

New trial.

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