The Necessity Defense. Is it ever legal to break traffic laws? As a California criminal defense lawyer, I hear this question all the time from potential clients. I usually get a call on the 800 line at 800-797-8406 that starts with “I got a ticket but it’s a bullshit ticket…….”. And then the good part comes. I hear things like, “I have been running that stop sign for 14 years without getting a ticket, so how can it be illegal today?” or maybe, “I was like 2 blocks in front of my house, so it can’t be a DUI!, I almost made it home!”. Unfortunately people, these things are not lawfully valid defenses. So what is a valid defense?
Legal Defenses that work in Traffic Court
Well there are lots of legal defenses that work in California traffic courts. For example identity is always a good issue. Was that really you who ran the red light when the camera went off? Or did somebody else use your name? Did the officer get a thumprint? See photo ID? Verify height, weight and physical characteristics to to match the ID presented? Other good issues include the basic speed law and the speed trap defense. In any traffic stop it’s always a good idea to check for probable cause too. When we see a ticket for no insurance VC 16028(a) with nothing else charged on the ticket, you kind of have to wonder why that guy was stopped in the first place and if it was a legitimate stop. Probable cause is a complicated subject and the source of great debate, but for now suffice it to say that the police need it or your case could be getting dismissed. This isn’t Arizona, we don’t just go around stopping people and shaking them down for their paperwork. There has to be a legitimate reason for the initial police conduct before we ever get to the paperwork.
The Necessity Defense
That brings me to today’s topic, the necessity defense. Necessity is a classic legal concept and has been considered a valid defense to criminal activity since the days of common law. Most states, including California have statutes and precedent under case law that establish and define the defense of necessity. The elements of the defense in California are spelled out in a jury instruction. The general concept under the law is that the defense of necessity, or choice of evils, traditionally covered the situation where physical forces beyond the actor’s control rendered illegal conduct the lesser of two evils. According to CALCRIM 3403, the elements of a necessity defense are
1-Breaking the law to prevent significant bodily harm or evil
2-No adequate legal alternative
3-Breaking the law did not create an even greater danger than the one you are trying to avoid
4-You thought the act was necessary (subjective test)
5-It was reasonable to believe the act was necessary (objective test)
6-You did not substantially contribute to the emergency (can’t create you own necessity)
What qualifies as a necessity of course varies based on who you ask. For some, it is a necessity that you get to work on time so speeding should be ok right? Wrong, the court would probably rule that you should have just gotten your ass out of bed a little earlier to get there on time without breaking the law. I recently watched a guy try to present this defense in court on his own without a lawyer, and he was convinced he had it down. He told the judge that it was “necessary” for him to violate VC 23123(a) and use his cell phone while driving because his car was breaking down. He even produced repair records showing just how bad of shape his car was in. The judge listened, but ultimately found the guy guilty and said his defense didn’t hold water. For some reason the judge thought it would have been a better idea for that guy to pull over his broken down ride first, and then pick up the phone and call the mechanic. Man traffic court judges can be strict. So what does qualify? Think of a situation where you have NO other option but to break some traffic laws. Maybe you are being chased by the paparazzi, right Biebs? Or maybe you are having a medical emergency, that could fly.
In one noteworthy case, the judge ruled that even though the defendant was driving in violation of multiple traffic statutes, his conduct was legal due to the defense of necessity. In the words of the court, “However, we share the apparent concern of Mr. Witkin that a driver, confronted with his or presumably a passenger’s medical emergency, should be permitted the opportunity to defend a reckless driving charge arising out of a journey to the hospital on the theory of ‘necessity.’ A citizen cannot be reasonably expected to engage in self-sacrifice and bleed to death at the altar of the Vehicle Code by observing the basic speed law and other rules of the road.” People v. Morris, (1986) 191 Cal.App.3d 8, 11