Florida’s DUI Necessity Defense

Under limited circumstances, a person charged with Driving Under the Influence (DUI) in Florida may assert the necessity defense—a narrow but recognized legal doctrine that excuses conduct that would otherwise be criminal if it was undertaken to prevent a greater harm.

In a DUI case, the necessity defense may apply when the defendant drove while impaired only because of an emergency or to protect themselves or others from imminent danger.

Although courts apply this defense cautiously, it provides an important safeguard for defendants who acted out of compulsion, fear, or life-threatening urgency, rather than intent to break the law.

Attorney for DUI Necessity Defense in Tampa, FL

If you were arrested for DUI in Florida but acted out of necessity to protect yourself or another person from harm, contact the experienced attorneys at the Sammis Law Firm.

Our team has extensive experience litigating DUI defenses throughout Hillsborough, Pinellas, Pasco, and Polk Counties, and we know how to raise and preserve affirmative defenses like necessity and duress.

We can evaluate whether your situation qualifies under Florida law, gather evidence to support the emergency circumstances, and argue for a dismissal or reduction of your charges in court.

Information Center

• When the Necessity Defense May Apply in a Florida DUI Case
• Elements of the Necessity Defense in Florida
• Case Example: Brooks v. State (Fla. 2d DCA 2013)
• Limits of the Necessity Defense in DUI Cases
• Jury Instructions on the Necessity Defense

Back to top

When the Necessity Defense May Apply in a Florida DUI Case

Florida courts recognize the necessity defense as part of the state’s common law and through standard jury instruction 3.6(k). It applies when a person commits a criminal act under duress of natural forces or emergency conditions, not of their own making.

In the context of DUI, the necessity defense may arise when:

• A driver, though impaired, must transport someone in medical distress to the hospital;
• The driver acts to escape a dangerous situation (for example, fleeing an immediate threat or natural disaster); or
• The driver operates a vehicle momentarily to avoid imminent harm, such as moving out of traffic to safety.

These scenarios recognize that avoiding a greater harm can justify temporary, involuntary conduct that would otherwise be criminal.

Back to top

Elements of the Necessity Defense in Florida

Florida courts have consistently applied five key elements to the necessity defense, as outlined in Brooks v. State, 122 So. 3d 418 (Fla. 2d DCA 2013):

1. The defendant reasonably believed the act was necessary to avoid an imminent threat of serious bodily injury or death to themselves or another person;
2. The defendant did not recklessly or intentionally place themselves in the situation that created the necessity;
3. No reasonable or adequate alternative existed to avoid the harm other than committing the criminal act;
4. The harm sought to be avoided was greater than the harm caused by the criminal conduct; and
5. The defendant ceased the criminal act as soon as the emergency or apparent necessity ended.

Each element must be supported by evidence before the trial court will permit a jury instruction on the defense.

Back to top

Case Example: Brooks v. State (Fla. 2d DCA 2013)

In Brooks v. State, 122 So.3d 418 (Fla. 2d DCA 2013), the defendant was charged with a third DUI offense committed within 10 years of a prior DUI conviction which is a third-degree felony. On appeal, the defendant argued that the trial judge improperly denied his request for a special jury instruction on the defense of necessity.

The defendant argue that he qualified for the special jury instruction because at trial he admitted to being impaired but showed that the circumstances compelled him to take to the highway because his friend’s cat was sick, and he was the only person available who could transport the cat to an all-night veterinary clinic for treatment.

Although his defense was unusual, he presented some evidence to support it. For example, he was transporting a cat, and the cat was very ill. There is a veterinary clinic near the highway exit where the deputy stopped the defendant. The cat’s owner and two of his acquaintances were passengers in the defendant’s car. One of these persons was apparently giving the defendant directions to the clinic when the deputy stopped his vehicle.

The defendant explained the circumstances to the deputy. The cat’s owner pleaded, “My cat is fixing to die!” At trial, the evidence showed that the cat died shortly after the vehicle was stopped and the defendant was arrested for DUI.

The appellate court considered the law in other states and in the circuit courts of Florida before concluding that the defense of necessity is available in Florida for a DUI charge. The Court found, however, that the trial court correctly denied the requested instruction under the circumstances of this case because the first of the five elements of the necessity defense requires that the defendant reasonably believe that his action was necessary to avoid an imminent threat of danger or serious bodily injury to himself or others.

The appellate Court concluded that the phrase “or others” did not apply to animals. Additionally, the words of paragraph 2 of the standard jury instruction on the defense of necessity contemplate an emergency threatening significant harm to the defendant or to “a third person.” See Fla. Std. Jury Instr. (Crim.) 3.6(k).

Although the Court indicated that the defendant’s desire to obtain treatment for the sick cat was understandable, the elements of the defense and the plain language of the jury instruction compelled the Court to conclude that a claim of necessity is not available as a defense to a DUI charge in Florida when the asserted emergency involves the threat of harm to an animal instead of a person.

Back to top

Limits of the Necessity Defense in DUI Cases

The necessity defense is narrowly construed. Courts view DUI as a serious public safety offense and rarely excuse impaired driving. To successfully assert the defense, the defendant must demonstrate that the emergency:

• Involved imminent danger to human life or safety;
• Was not self-created through voluntary intoxication; and
• Left no reasonable alternative, such as calling for emergency assistance.

In most cases, the defense fails where the defendant had other lawful options, such as contacting 911, seeking help from another driver, or waiting for emergency responders.

However, in a genuine emergency, such as transporting a person suffering a heart attack, stroke, or serious injury, this defense may justify the brief, limited operation of a vehicle while impaired.

Back to top

Jury Instructions on the Necessity Defense

The Florida Standard Jury Instructions (Criminal) 3.6(k) provide guidance on how jurors must evaluate this defense:

“It is a defense to the offense charged if the defendant committed the act out of necessity or under duress to avoid an imminent danger or emergency threatening death or serious bodily injury to themselves or another person, and that the act was reasonably necessary under the circumstances.”

Trial courts have discretion to refuse a necessity instruction unless evidence supports each element. An experienced attorney can ensure that all necessary evidence and witness testimony are presented to justify giving this instruction at trial.

Back to top

Contact Our Tampa DUI Defense Lawyers

Call (813) 250-0500 today for a free and confidential consultation with a Tampa DUI defense attorney at Sammis Law Firm.

We represent clients throughout the Tampa Bay area, including Brandon, Clearwater, St. Petersburg, New Port Richey, and Plant City, FL.

If your actions were driven by an emergency, not by intent to break the law, our attorneys will fight to make sure your side of the story is heard.