Managing Attorney
Texas law contains several defenses that have been approved by the legislature and made a part of Texas law – so-called statutory defenses. Examples of statutory defenses are self-defense, duress or entrapment. Even if you engaged in conduct that amounts to a criminal offense, a statutory defense could be used to find a defendant “not guilty” of a criminal charge if the behavior is covered by the statutory defense. One defense that is sometimes used in DWIs is the defense of necessity, which may entitle a person to drive while intoxicated to escape a dangerous situation.
Under Texas Penal Code 9.22, it can be a defense to a criminal charge that a person engaged in a criminal act to avoid imminent harm, if the harm to be avoided outweighed the harm that the crime was meant to make illegal. In other words, it may be permissible to engage in an illegal act, in order to avoid a risk of harm that was much worse.
One context where the defense of necessity occasionally comes up is in driving while intoxicated cases, when an intoxicated person drives – and even admits to committing DWI – to escape a dangerous situation. In these situations, even if a person is intoxicated, they may be legally justified in driving if the harm they sought to avoid was worse than the harm that they were facing.
One interesting example from last year, came from Brazos County in Maciel v State. In that case, the defendant went out drinking in College Station and was intoxicated. On the way home, her brother – who was the driver – became ill and stopped the car abruptly in the middle of the road. She testified that she moved the car – and committed the offense of driving while intoxicated – to get the car off the road and out of danger. The Texas Court of Criminal Appeals (the highest criminal court in the state), held that the defendant raised enough evidence to present the necessity defense to a jury and have the jury decide whether or not her actions were reasonable and whether the defense of necessity applied.
How is the defense of necessity raised?
Like most defenses, the defense of necessity is typically raised in a trial, where it is presented to a jury. Generally, to be entitled to a defense in trial, a defendant has to present some evidence to support the defense. In many cases, this means admitting – or at least not denying – that you engaged in the conduct that forms the basis of the defense. For example, in the Maciel trial, once the defendant admitted to driving the car to get it out of the road (and arguably avoid a greater risk of harm), she had raised enough evidence to have the defense of necessity presented to the jury at the end of the case, when it deliberates on whether a person is guilty or not. For many statutory defenses, it is frequently necessary for the defendant to testify.
Successfully raising any defense in Texas requires extensive knowledge of the law and an impeccable command of the facts of a case. If you have been charged with any intoxication-related offense in the Greater Houston area – such as DWI or intoxication assault – call Ceja Law Firm today for a free consultation.
