If you face a drunk driving charge in Las Vegas, a criminal defense attorney uses a range of strategies to defend against the charge. One strategy that applies in some circumstances is the necessity defense. Specific requirements must be met before your lawyer can assert the necessity defense in a Las Vegas DUI case.
The necessity defense is a type of justification defense that applies to more than DUI cases. In a DUI case, it applies to situations where the driver faced an emergency that required driving under the influence to address the emergency. While the necessity defense may be available in a drunk driving case, Nevada law is not clear about whether it would apply to a drugged driving case.
Nevada statutes do not address the necessity defense, but state court decisions recognize it under common law. Since the legislature has not precluded the defense under state law, courts continue to recognize it as a justification defense. However, there are strict requirements as to when it is available to a defendant.
Nevada courts recognize the necessity defense as justification for driving under the influence in an emergency. However, a driver’s belief that they acted out of necessity is not sufficient the necessity defense to succeed. Generally, a court allows the defense only if specific criteria are met, although the requirements have not been formally established in case decisions.
The first condition is that a true emergency existed. Examples include when another person unexpectedly experiences a medical emergency or driving to escape harm from an event (like a natural disaster, such as a forest fire or flood) or threat by another person.
In addition, the defense is available only if efforts were made to get help, such as calling 911, before the drunk driver decided to drive, and those efforts failed to get the necessary assistance. An example of failed efforts would be that 911 was unreachable or operators were not available.
An additional requirement is that there was no other method of transportation available to address the emergency, including public transportation or another driver. The circumstances must be such that the only available solution was to drive under the influence. It is also essential that the driver had no intention of driving under the influence before the emergency occurred.
Finally, the drunk driver cannot be the cause of the emergency. If the driver created or participated in the situation that led to the emergency, the defense will not apply.
If all the above conditions are not met, the necessity defense will not be available. If the facts do not establish even one of the requirements, asserting the defense will not succeed.
If you are stopped on suspicion of DUI, you should never attempt to assert the necessity defense yourself. The only thing you should do is draw the attention of law enforcement to the emergency situation so they can get help to address it. Otherwise, you should refrain from making any statements and ask to contact your lawyer immediately. But remember that Nevada has an implied consent law that applies to testing if you’re stopped for DUI.
One important reason why you should not try to claim the defense on your own is that you essentially admit to being under the influence in the process. That can be a significant problem if you claim the defense but don’t meet all the requirements. You should allow your attorney to determine what the best strategies are for defending against your DUI charge, as well as when and how to assert them.
Whether or not you were in circumstances where the necessity defense may apply, retaining a knowledgeable DUI lawyer is essential for any DUI charge. That’s true even if it’s only your first DUI offense.
A DUI guilty plea and conviction on your record has substantial long-range consequences, even beyond the fine and penalties imposed for the offense. A knowledgeable DUI lawyer has proven strategies for defending against a Nevada charge and minimizing the impact on your record and your life.
If you face a drunk driving charge in Las Vegas, attorney Joseph Gersten is here to help. His investigative background, trial experience, and criminal defense focus significantly benefit anyone facing a DUI charge. He also helps clients with other traffic charges, as well as sealing Las Vegas DUI conviction records.
The Gersten Law Firm assists clients facing any state or federal criminal charge in Las Vegas, Henderson, and elsewhere in Clark County. There is no charge for your initial consultation and case evaluation. Call 702.857.8777 or complete our online form to schedule an appointment.