Court: DUI defendant can use ‘necessity’ as a defense

By Cy Ryan

Thursday, Oct. 7, 2010 | 3:23 p.m.

CARSON CITY – The Nevada Supreme Court has ruled that a person arrested for drunken driving has another defense available to avoid a criminal conviction.

The court said the defense of “necessity” can be asserted by the defendant to show his or her action was the lesser of two evils and not the result of the defendant’s own conduct.

The case involves Richard W. Hoagland, who was living in his truck and sleeping at the time in an employee parking stall at the Salvation Army in Las Vegas. A security officer told Hoagland to move his truck.

Hoagland backed his truck into another vehicle and was charged with drunken driving. At his trial Hoagland sought to offer a jury instruction on the defense of necessity, but District Judge Kenneth Cory refused to allow it.

Hoagland maintains he feared that if his truck was impounded, he would lose his shelter and personal possessions and would be unable to pay the impound fees. That made it necessary for him to move his truck while intoxicated.

When the proposed jury instruction was denied, Hoagland pleaded guilty but maintained he was innocent and retained the right to appeal to the Supreme Court.

The court, in a decision written by Justice James Hardesty, said “Since the Nevada Legislature has not precluded the use of necessity as a defense; we conclude that it is available and can be asserted in a DUI violation.”

But the court upheld the conviction, saying there was insufficient evidence presented by Hoagland to show he didn't contribute to the situation. There must be evidence that shows a defendant’s conduct did not create the emergency.