You've posed an interesting question of law; it reminds me of the sort
of questions they ask in law school. Of course, to you this is much
more than an academic question, so I will seek to give you the best
information I can.
First of all, let me advise you to get an attorney IMMEDIATELY.
California has a strict time limit on when you can raise legal issues
in license suspension cases, and missing the deadline could make the
suspension all but automatic. (Nearly always, the person charged needs
to take action within TEN DAYS to avoid license suspension.) Also, I'm
not an attorney and therefore not qualified to give legal advice; what
I can do is give you a personal opinion based on research as to what
issues could arise in such as case and how they might be resolved. You
should not make any decisions in this matter until you consult with an
What you're talking about in this case basically is asking whether in
your situation you could use what is known as a "necessity defense."
In other words, you're saying, "Yes, I did something that the law says
I shouldn't do, but it was a necessary action under the
circumstances." Blatant examples of where a necessity defense might
be used is in the case of someone who forges a document at gunpoint or
of someone who breaks a window to escape from a burning building.
So we face two major issues here:
-- Whether the facts of the case fall under those where a necessity
defense might apply.
-- Whether a necessity defense can be raised in California in a
hearing regarding a suspension of a driving license for DUI.
Let's look first at necessity defense in general. Loosely put, the
necessity defense is the argument that the actions were necessary and
justifiable. In determining that, a court might look at these two
tests indicated in these sample jury instructions:
"It is a defense to the offense [charged] [included] that:1
"(1) the defendant reasonably believed the conduct was immediately
necessary to avoid imminent harm; and
"(2) the desirability and urgency of avoiding the harm clearly
according to ordinary standards of reasonableness, the harm sought to
be prevented by the law proscribing the conduct."
Source of sample jury instruction:
Street Law Cases and Resources
In your case, I believe it would hard to show that your actions were
"immediately necessary" to avoid "imminent harm," as you were not
under immediate attack. There was nobody physically attacking you,
and there were no explicit threats made. If such a legal argument
were made, an attorney would probably say that a reasonable person
would have felt threatened under the circumstances and had no
alternative, but I believe you'd have an uphill argument to make. In
may not be fair, but you may not have been entitled to drive away
intoxicated until you actually saw somebody ready to attack you.
If you were to win on that argument, the question could be whether the
risk you put people under by driving under the influence was less than
the harm you sought to prevent. That's one of those judgment calls
that could go either way, but absent some evidence that your life was
in danger I believe you'd have an uphill fight again. Driving under
the influence does put people in danger, and the emphasis place in our
society on DUI would suggest that the law wouldn't look kindly on any
but the most persuasive of explanations for that behavior. It's also
not clear whether your life (or just you freedom from abuse) was in
danger; if you put people's lives at risk because you were justifiably
afraid of someone being mean to you, that may not be legal
One fact in your favor is that you did try to take alternative
measures (such calling 911), driving only when they were unsuccessful.
Various courts have used similar analyses in defining when the
necessity defense can be used.
One way of putting it is that "the necessity defense applies in
emergency situations were peril is imminent and the defendant has no
other option but to violate the law. State v. Johnson, 289 Minn. 196,
197, 183 N.W.2d 541, 543 (1971)."
Another court has provided a three-prong test for the necessity
defense (note the first provision):
"(1) the defendant is faced with a clear and imminent danger, not one
which is debatable or speculative; (2) the defendant can reasonably
expect that his action will be effective as the direct cause of
abating the danger; (3) there is no legal alternative which will be
effective in abating the danger . . . ."
Source: Commonwealth vs. Casey J. O'Kane
To summarize, the problem you would face on using a necessity defense
is that it does not appear you were in imminent danger; a lesser but
still significant legal problem is that by driving under the influence
you also put people in harm's way. I believe it would be a very hard
defense to use successfully under the facts you have given.
But now the question is, even if the necessity defense can be validly
applied under these facts, is such a defense allowed under a license
suspension case in California? Keep in mind that a license suspension
case is not a criminal proceeding; it is a civil proceeding. (There
also can be separate criminal proceedings for DUI.) In a license
suspension case, you do not have nearly the rights you would if you
were charged with a criminal offense. The rules of evidence are
somewhat looser, and the standard of proof isn't nearly as high. In
civil proceedings, a defendant has to do more than raise a reasonable
doubt; he or she generally has to show that the weight of the evidence
is on his or her side. And in a license suspension, you don't even
have the right to a trial by jury.
In any case, as far as I've been able to find out, such a necessity
defense hasn't been successfully used to prevent suspension of a
license in California. That doesn't mean it hasn't been done; it only
means that I have been unable to find such a case. Nor is there any
express provision in the law for such a defense. Again, you need to
talk to an attorney to see if such a defense can be considered. But
as far as I've been able to find out, the issues that can be raised
when fighting a license suspension are pretty much limited to those
such as the accuracy of the alcohol test and whether proper procedures
were followed in the arrest and in administering the text.
Another reason you should see an attorney is because there may other
defenses available. When license suspensions are successfully fought,
they are generally over issues such as whether the alcohol test was
valid, or whether the officer had probable cause to pull the person
over. There very well may be some facts that could give you a defense
less problematic than a necessity defense.
Here are some other resources you may find helpful. The first one
listed, in particular, does a good job of explaining what your rights
are and what you options are if your license is suspended.
California DUI News
Driver's License Suspensions
California's applicable statute
California DUI Defense Attorneys
Driving While Intoxicated
Google search strategy used: various combinations of words and phrases
such as "necessity defense," "dui," "legal defenses," "california" and
A final note: I apologize for my earlier comment. It was poorly worded
at best, rude an insensitive at worst. What I was trying to say is
this: You face an uphill battle, and you need to have everything going
for you that you can. It is possible that a hearings officer might
conclude from the facts given that you have a drinking problem; if
that happens, it could jeopardize your case. I honestly don't know if
you have a drinking problem or not; what I do know is that if I had a
friend who was drinking enough to reach twice the legal limit for
drunken driving I would be concerned. You (and perhaps your close
friends) are in the best position to determine if there's a problem.
If there isn't problem, there's nothing wrong (in my opinion) with
responsible drinking and you have nothing to feel guilty or to be
defensive about; if there is a problem (and I'm not saying there is),
count your blessings that nobody got hurt.
I really do want what's best for you, and I hope you can resolve your
legal problem in a way that lets you take care of your family. Best
wishes, and PLEASE talk to an attorney immediately.
Clarification of Answer by
03 Jul 2002 07:06 PDT
First of all, let me give you a more complete answer to your original
question, something I didn't have complete information about before
but do now. And that is that with regard to your license suspension,
the reasons for your decision to drive are legally irrelevant. That
may not be fair, it may not be right, but that's the law.
Here's a link to an explanation by the California Department of Motor
Vehicles about what is legally relevant with regard to the hearing
about your license suspension:
State of California DMV
The following explanation by a California attorney also indicates that
the issues you raise are irrelevant in the administrative proceeding:
Robert M. Wilson, Attorney at Law
As an aside, it sounds like this defense attorney agrees with you on
the lack of justice you may receive at this level:
"Many DSO Hearing Officers do not fully understand the law as it
relates to drivers license suspension, or are afraid to rule in favor
of a Licensee as they see it as their job to support the Department of
Motor Vehicles. ...
"These hearings are very technical, and the chances of a person
winning without legal help is slim. DMV does not care if you need to
drive for work or school purposes."
Again, it may not be fair, but a hearing to consider the suspension of
your license isn't a criminal trial, and you don't have all the rights
you would have if it were a criminal case. The only real issues at
this point are whether your arrest was legal (you haven't said
anything to indicate otherwise, and if the officer smelled alcohol on
your breath and followed proper procedures it probably was) and
whether the alcohol tests given you were accurate. That explains why
all the cases I was able to find on this matter related to those
issues; other factors are irrelevant in this process. Again, it may
not be fair, but that's the law. (If you're also facing prosecution
under the criminal law, you'll have more rights in that process.)
To summarize, even if you were justified in driving under the
influence, it's irrelevant in the administrative hearing to suspend
your license. It may be relevant if there is any subsequent criminal
action against you.
With all due respect, I believe you may have made the wrong decision
in not having an attorney at your hearing. I realize that $5,000 is a
lot of money, and that's more money than I would have to fight a
license suspension, so your decision is understandable, and I can't
say I wouldn't have done the same thing. But you're facing issues now
that are beyond the ability of the typical non-lawyer to handle.
There are good reasons (and not just selfish ones on the lawyer's
part) why the attorney who talked to you said you should have
Back to your clarification request: What you want to know is what do
you do now that your DMV hearing didn't go well. That's beyond the
scope of the original question, but I'll give you the best answer I
can. Here's what attorney Robert M. Wilson says on his site:
"Following the hearing, you have the right to be provided a decision
in writing. Should the decision resulting from the hearing be against
you, you have the right to request the department to conduct an
administrative review of the decision, as well as the right to appeal
the decision to superior court.
"Requests for the administrative review or to appeal the decision in
court must be made within a certain time period dependent on the type
of hearing and as described in the Vehicle Code. These time periods
and other specific information concerning your rights will be stated
on the notice containing the hearing decision."
Source: Robert M. Wilson
In other words, you should have received a written notice if the DMV
decision went against you. (If you didn't get one, call the DMV and
ask for one!) That notice should indicate what deadlines you have to
meet in order to file an appeal. You can either appeal to the DMV or
you can go to Superior Court to have the DMV decision overturned.
Chances are (you'll need to talk to an attorney to make sure) that in
such an appeal you won't be able to make arguments about why you were
justified in driving under the influence. The appeal would be only to
decide whether the DMV acted properly in suspending your license.
If you can make a good case that the hearings officer didn't
understand the language, that would certainly be valid grounds for
appeal. A good attorney could probably come up with other reasons to
pursue an appeal.
If you want to file an appeal, YOU SHOULD HIRE AN ATTORNEY
IMMEDIATELY. I can't overemphasize that. I'm sure you're an
intelligent person and do many things well, but you're facing a
situation that is almost certainly beyond your abilities. To be blunt
about it, I personally believe you have zero chance of keeping your
license if you don't hire an attorney (and you face an uphill fight
even if you do).
There are also some circumstances where you could have your driving
privileges restored with certain restrictions under a hardship
provision of the law. An attorney also could advise you whether that
would be possible in your case.
You're facing an immensely difficult situation, and you can't handle
it alone. I wish you the best.