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Florida’s DUI Necessity Defense

Florida law may recognize a necessity defense in a DUI case when the defendant has a compelling circumstance that requires driving to avoid greater harm. The most commonly cited example is when the driver is faced with a medical emergency and drives himself or someone else to the hospital.

The necessity defense as defined under Florida law has the following elements that could be applied in a DUI case:

  1. The defendant reasonably believed that the action was necessary to avoid an imminent threat of serious bodily injury or death to the defendant or another person;
  2. The defendant did not recklessly or intentionally put himself in the circumstance in which he would likely be forced to choose the criminal action;
  3. No other adequate means existed to avoid the harm except by doing the criminal act;
  4. The harm that the defendant wanted to avoid was worse than the criminal act committed to avoid the harm;
  5. The defendant stopped committing the criminal act as soon as the necessity or apparent necessity for the act had ended.

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.

Contact a DUI defense attorney at the Sammis Law Firm to discuss how the DUI necessity defense might apply to a drunk driving case under Florida law.

This article was last updated on Thursday, December 8, 2022.