Is Necessity a Defense to a DWI?

Charlotte DWI Lawyer Brad Smith answers the question: “How can an attorney help me with my DWI?”


After being charged with a crime, your mind might be reeling. Suddenly, you are thrust into the criminal justice system and are trying to figure out what to do next. Driving while impaired (DWI) is a common charge in North Carolina, otherwise known as drunk driving. An experienced DWI attorney can help qualm your fears and prepare the best possible defense for you. One defense to a DWI that is not always the first to come to mind is necessity. In some instances, it could be a valid defense to a DWI. This is not to say that using necessity as a defense will be an automatic “win,” but instead one of the many defenses that might be used to defend the individual facing a DWI charge.


Golf-cart-Monroe-Charlotte-Lake-Norman-DWI-Defense-Attorney-200x300Necessity means that a person who is committing the act understands that an action is criminal and they would usually face charges for it, but under the circumstances, committing the otherwise prohibited action is necessary. Recently, the North Carolina Court of Appeals looked at the necessity defense for DWI cases. In State v. Miller, the court reaffirmed that necessity can be used in DWI cases, if the circumstances warrant it.


In Miller, Kenneth Miller (“Miller”) and Heather Miller, his wife, drove a golf cart to a bar. The bar was close to their home. The original plan was for Heather to drive the couple home after spending time at the bar because she was not planning on drinking a lot. At the very least, she was going to drink less than her husband. After a couple of hours, the couple left the bar after having several drinks each. In the parking lot, Miller got into a fight. The person who Miller got in a fight with had a gun, prompting Miller and Heather to quickly get in the golf cart and drive away. Miller ended up driving home. Since the couple were fearful of the man with the gun, they took the fasted route home – Old Highway U.S. 1. The golf cart did not have head lights and was subsequently pulled over. Miller was charged with a DWI.


In the lower court, Miller was not permitted to use the necessity defense. On appeal, the court reversed this. The appeals court decided that not using the necessity defense was a mistake and there should be a new trial. The court outlined when a necessity defense might be permitted. In examining the evidence in the light most favorable to the defendant, necessity can be applied when  there was a reasonable action taken to try and protect life, limb, or health, and no other acceptable choices were available at the time.


If you are facing a DWI charge, the DWI attorneys at Arnold & Smith, PLLC are here to help you. We know that sometimes circumstances are out of your control and you have to do what is necessary to save yourself and those around you. As such, we are dedicated to providing a comprehensive defense, presenting all applicable defenses. Contact us today for a consultation. If you find yourself facing criminal charges and need the help of an experienced criminal defense attorney in or around Charlotte, Lake Norman, or our new office in Monroe (by appointment only until 2019), please contact Arnold & Smith, PLLC today at (704) 370-2828 or find additional resources here.








The criminal defense attorneys at Arnold & Smith, PLLC make it their mission to zealously defend their clients on a wide range of criminal matters at both the state and federal levels. These matters may include any charge from traffic offenses; DWI/DUI; drug charges (from simple possession to possession with intent to distribute and trafficking); gun permit denials; weapons offenses; and property crimes (larceny, breaking and entering, robbery, fraud, embezzlement, white collar offenses); to sexually related offenses (indecent exposure; sexual assault, crimes against nature, removal from sex offender registry); and violent crimes (domestic violence; assault; manslaughter; homicide, murder). Other legal issues that Arnold & Smith, PLLC criminal clients may be facing include restraining orders, restraining order and probation violations, expungements; appeals; and immigration issues related to criminal charges. Our criminal defense attorneys are passionate about ensuring that individuals empower themselves by being informed about their constitutional rights, and stand at the ready to fight in the defense of those facing criminal charges.





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