DWI defense of “necessity“
This is a very interesting case for several points. I will address each one individually.
Submitted by New Jersey DWI Lawyer, Jeffrey Hark.
- Standard of review for the appeal of a municipal court decision by the municipal court judge.
I have written numerous blogs on this issue previously but it worth repeating at this time. Any word appeal to the what division who is a review on the trial transcript. The law division judge view the transcript for the factual determination as well as the legal evaluation. The municipal court judges evaluation of the facts and law is reviewed and “de Novo“ by the law division judge. The only part of the municipal court decision that is not reviewed by the Superior Court judge are any findings of credibility and veracity of the witnesses.
The next issue in this case is the alleged DWI defense of “necessity“. This is a common law on the fence preference by the defendant. The argument is that he or she was absolutely required to drive even though intoxicated and in violation of the law because of an imminent risk of life or injury. The law division judge and the appellate court rejected this argument when compared to the New Jersey supreme court decision of state the Romano decided in 2002. The appellate court found the facts in this case were not so compelling to entitled to drive. The defendant here alleges was the victim of domestic violence and was in her car hiding and drove away from the scene of after being assaulted by her boyfriend. However, the court rejected this argument finding that she was not in any risk of “imminent” death or injury sufficient enough to establish the “necessity“ defense.
This court goes on to evaluate what constitutes such eminent risk of injury as well as the nature extent of that injury which would be sufficient to entitle a defendant to the necessity defense.
Obviously, and a DWI setting, there must be a evaluation between the necessity to drive and the risk of bodily injury to the driver. Public policy would dictate that there shall be no driving under the influence except in the most egregious circumstances which would involve serious battle injury and or death to the driver if they were to stay in their existing circumstances. The courts do not want to open the door to a DWI exception which would be too great and allow too many drivers to take advantage off as a means to invade the DWI laws.
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