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Duress and DWIs in North Carolina

For hundreds of years, American and, before that, English law has recognized the defense of duress (also called, coercion, or necessity). A duress defense is an affirmative defense. Usually the defendant acknowledges that a crime was committed, but asserts that there was a justification to commit the crime.

Unlike an excuse – say, for instance, involuntary intoxication, or mental illness – a justification is a blanket statement that in certain circumstances a criminal act will not be considered criminal act because some higher value is at stake.

In this sense, a duress or necessity defense is like self-defense. Self-defense says that ordinarily it is wrong to assault or kill someone, but in cases where a person is threatened with imminent serious bodily harm or death, a person can respond with force, sometimes deadly force, to protect herself or another person.

In a Driving While Impaired offense, intent is usually not an issue so long as the driver voluntarily drank the alcohol or took the impairing substance. But DWI is not a strict liability offense, and therefore a necessity or duress defense is available.

State v. Hudgins sets out that a duress defense is permitted in DWI prosecutions in North Carolina. So, assuming the evidence, viewed in a light most favorable to the defense, shows that “substantial evidence” exists to support a necessity defense, the instruction must be given to a jury.

A duress (or necessity) defense – State v. Thomas – has three elements in North Carolina.

  1. Reasonable action
  2. Taken to protect life, limb or health of a person
  3. No other acceptable choices available

Reasonable action means just what it says. That the action, even though it was criminal, was reasonable, under the circumstances. A person may not take advantage of a necessity defense to protect property, nor to avoid some minor injury. And, under the circumstances, there can’t be other acceptable choices.

If the judge finds that there is substantial evidence – State v. Smith – such relevant evidence as a reasonable mind might accept as adequate to support a conclusion – then the following instruction, or something similar, must be given:

There is evidence in this case tending to show that defendant acted only because of duress. The burden of proving duress is upon the defendant. It need not be proved beyond a reasonable doubt, but only to your satisfaction. The defendant would not be guilty of this crime if his actions were caused by a reasonable fear that he (or a third party) would suffer immediate death or serious bodily injury if he did not commit the crime. His assertion of duress is a denial that he committed any crime. The burden remains on the State to prove the defendant’s guilty beyond a reasonable doubt. (North Carolina Pattern Jury Instruction, 310.10)

Under North Carolina General Statute § 15A-905, a case with original jurisdiction in Superior Court requires that the Defendant provide the prosecution with notice that it intends on seeking a necessity defense before the start of trial upon the request of the State.

But since most DWI prosecutions only reach Superior Court on a de novo, original jurisdiction does not sit in Superior Court in a typical DWI prosecution. Consequently, the defense is not required to provide the state with notice of the defense in the typical DWI prosecution – State v. Badson.

In order to preserve the matter for appeal, the request for the instruction must be made in writing purusant to NCGS § 15A-1231.



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