Ask A Lawyer: Driving Drunk to Avoid a Wreck

Question: I was leaving a party some friends late one night. It was my car, but I was too      drunk to drive, so I had a sober friend drive. We started fighting, she stopped the car in the road and walked off. We saw lights coming up the road behind us, but I was crying and could barely see, plus I was still too drunk to drive. One of the girls got out of the back seat and to the front, drove enough to get the car off the road to a gas station parking lot. Turns out the car we saw coming was a police officer, and he pulled us over.

She was charged with DWI, arrested and her breath test ended up being .12 Blood Alcohol Content. I was charged with Aiding and Abetting a DWI because it’s my car and I let her drive.

Is there anything we can do?

Answer: There is case law that may help. By focusing on the necessity of moving the vehicle, not only for the safety of the passengers but the safety of passengers in the oncoming vehicle, an argument can be made that the decision to operate the vehicle was a logical decision and was required to prevent great harm. The rationale behind the necessity defense is that sometimes, in a particular situation, a technical breach of the law is more advantageous to society than the consequence of strict adherence to the law. The defense is often used successfully in cases that involve a Trespass on property to save a person’s life or property.  I have only successfully used it in a DWI once in the last 25 years.

Since she pulled immediately into a gas station parking lot, it is clear that she did not intend to drive the vehicle any farther than necessary.

One key to the defense, at least for your friend, is that there was no criminal intent. She did not intend to operate the vehicle, except to the extent necessary to protect the safety of passengers in two vehicles.

With good preparation and a solid case, your friend’s DWI might be won. If your friend’s case is won, then there is no underlying DWI, and there is nothing for you to have aided and abetted, and your charge must be dismissed.

This is a very unusual defense and will only work in very limited circumstances. However, from the facts you give, it is a sound defense.

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