The Defense of NECESSITY in DUI Prosecutions (Battered Woman Syndrome)
Although not often employed, the author recently invoke the Affirmative Defense of Necessity in an Illinois prosecution for DUI. This guide lays out the framework and procedure for employing such a defense.
The Affirmative Defense of NecessityIn the case at hand, my client was charged with DUI after officers observed her stationary vehicle in the roadway in front of a residence. The Defendant was approached by officers, told to park her vehicle and subsequently failed field sobriety testing, was arrested and later submitted to a Breath Test which disclosed a BAC of .08 or greater.
Although not mentioned at the time by Defendant and further, not mentioned in any Discovery or police reports disclosed prior to trial, the officer was responding to a dispatch regarding a domestic disturbance in the area phoned in by a citizen. (This fact was first disclosed in the officer's testimony during the State's rebuttal case) The DUI arrest at issue was the 2nd DUI for the Defendant and as a result thereof, the Defendant was facing mandatory fines and jail and a conviction would result in revocation of her driving privileges.
In the course of our consultation it became clear that moments prior to her interaction with law enforcement, the Defendant had been in a domestic dispute with her boyfriend of several years. Approximately 5 minutes earlier, the Defendant's boyfriend was operating her vehicle while he was under the influence of his own accord despite Defendant's protestations and despite the fact that his driving privileges were revoked due to multiple DUI convictions. As they argued about his driving and her repeated request for him to stop and have them call for a cab, the boyfriend became enraged, slammed the vehicle to a stop and threatened to batter the Defendant. As Defendant attempted to get out of the car, the boyfriend grabbed her cellphone and confronted her outside the vehicle. Fearing another assault at his hands, the Defendant realized that the boyfriend had not grabbed the keys and she quickly jumped in the vehicle and drove off. With no phone or ability to contact anyone she drove (albeit under the influence of alcohol) approximately 2 blocks to a friend's house as she had no other alternative. It was in front of that friend's house where Defendant encountered police and was arrested.
After consultation with the client and some research, it was determined that there were numerous prior reports filed by Defendant regarding altercations with the boyfriend that resulted in only 2 filings of charges. There was a demonstrated history from the prior reports of domestic battery and the boyfriend's penchant for taking Defendant's vehicle by force as well as numerous occasions wherein he stole her phone to prevent her from calling police. There was additional evidence of domestic altercations subsequent to the occurrence at issue which included more vehicle and cellphone thefts as well as the boyfriend damaging Defendant's vehicle.
The defendant testified at trial about the history of abuse and the specifics as set forth in prior police reports. Defendant further testified that she feared for her safety and chose to drive off to avoid another battery at the hands of her now EX-boyfriend.
The NECESSITY DEFENSE and the procedural and legal requirements for sameIllinois defines the Affirmative Defense of necessity as follows:
720 ILCS 5/7-13 Necessity
Conduct which would otherwise be an offense is justifiable by reason of necessity if the accused was without blame in occasioning or developing the situation and reasonably believed such conduct was necessary to avoid a public or private injury greater than the injury which might reasonably result from his own conduct.
The elements of the affirmative defense of necessity are that: (1) the person claiming the defense was without blame in occasioning or developing the situation, and (2) the person reasonably believed that his conduct was necessary to avoid a greater public or private injury than that which might reasonably have resulted from his conduct. People v. Perez, 97 Ill. App. 3d 278, 52 Ill. Dec. 736, 422 N.E.2d 945, 1981 Ill. App. LEXIS 2795 (Ill. App. Ct. 1st Dist. 1981); People v. Parker, 113 Ill. App. 3d 321, 69 Ill. Dec. 240, 447 N.E.2d 457, 1983 Ill. App. LEXIS 1597 (Ill. App. Ct. 4th Dist. 1983); People v. Parker, 121 Ill. App. 3d 655, 77 Ill. Dec. 182, 460 N.E.2d 41, 1984 Ill. App. LEXIS 1455 (Ill. App. Ct. 5th Dist. 1984); People v. Govan, 169 Ill. App. 3d 329, 119 Ill. Dec. 825, 523 N.E.2d 581, 1988 Ill. App. LEXIS 556 (Ill. App. Ct. 4th Dist. 1988); People v. Janik, 127 Ill. 2d 390, 130 Ill. Dec. 427, 537 N.E.2d 756, 1989 Ill. LEXIS 46 (Ill. 1989), overruled as stated in People v. Meuris, 2016 IL App (2d) 140194, 2016 Ill. App. LEXIS 186 (Ill. App. Ct. 2d Dist. 2016).
The defense of necessity may be described as involving a choice between two admitted evils; the presence of another alternative which would cause less harm means that the defendant is not justified in breaking the law. People v. White, 78 Ill. App. 3d 979, 34 Ill. Dec. 289, 397 N.E.2d 1246, 1979 Ill. App. LEXIS 3640 (Ill. App. Ct. 4th Dist. 1979); People v. Whitson, 127 Ill. App. 3d 999, 83 Ill. Dec. 634, 470 N.E.2d 1054, 1984 Ill. App. LEXIS 2372 (Ill. App. Ct. 3d Dist. 1984), limited, People v. Coleman, 255 Ill. App. 3d 569, 193 Ill. Dec. 454, 626 N.E.2d 764, 1994 Ill. App. LEXIS 5 (Ill. App. Ct. 2d Dist. 1994).
The necessity defense must be viewed in light of the factual situation of the particular case which might include a defendant in a peculiar position to reasonably believe or anticipate an injury not apparent to someone who lacks similar knowledge, information, or training. City of Chicago v. Mayer, 56 Ill. 2d 366, 308 N.E.2d 601, 1974 Ill. LEXIS 448 (Ill. 1974).
In order to properly raise the affirmative defense of necessity, the defendant must present some evidence in support of the claim. People v. Ferree, 221 Ill. App. 3d 212, 163 Ill. Dec. 545, 581 N.E.2d 699, 1991 Ill. App. LEXIS 1954 (Ill. App. Ct. 5th Dist. 1991).
Necessity is an affirmative defense and thus, a defendant seeking to raise it must present some evidence in support thereof. People v. Planer, 161 Ill. App. 3d 938, 113 Ill. Dec. 883, 515 N.E.2d 1042, 1987 Ill. App. LEXIS 3320 (Ill. App. Ct. 4th Dist. 1987).
OUTCOME OF THE CASEAt trial, Defendant admitted to driving under the influence of alcohol and no evidence was presented by the State for obvious reasons. The Defendant then presented her testimony and introduced evidence of prior domestic abuse, altercations and her general fear of her ex-boyfriend when he was angry and intoxicated. Defendant's testimony was corroborated by prior police reports, orders of protection and case dispositions involving the boyfriend. The court then ruled that Defendant had met her burden of proof and shifted the burden to the State to rebut same beyond a reasonable doubt. Incredibly, for the first time, it was disclosed in the arresting officer's testimony that he was responding to a citizen's call regarding a loud domestic disturbance in the area (clearly it had to be the argument etc. involving Defendant and her boyfriend) whereupon he came upon Defendant in her vehicle.
Following arguments, the court found that the State wholly failed to rebut Defendant's Affirmative Defense and entered a ruling finding her NOT GUILTY OF DUI!