|Defense of Necessity|
One recent decision in Florida’s Second District ruled that getting your cat to an emergency veterinarian was no defense to Felony DUI in Tampa. The opinion can be downloaded here for free courtesy of Tampa DUI Lawyer Casey Ebsary . Sadly, the cat died en route. The Defendant remains convicted as charged.
Here are some excerpts:
“At approximately 1 a.m. on October 30, 2010, a Hillsborough County sheriff’s deputy clocked Mr. Brooks’ ehicle travelling at eighty-four miles per hour in a fifty-five mile per hour speed zone. . . Mr. Brooks’ defense was that his friend’s cat was sick, and Mr. Brooks was the only person available who could transport the cat to an allnight veterinary clinic for treatment.”
“[T]he cat’s owner pleaded, “My cat is fixing to die!” In fact, the cat did die, during or shortly after the vehicle stop that resulted in Mr. Brooks’ arrest.”
“[W]e must first address whether a claim of necessity is available in Florida as a defense to a charge of driving under the influence of intoxicating beverages.”
Defense of Necessity
In order to be entitled to an instruction on the defense of necessity, the defendant must present evidence of five elements:
(1) [T]he defendant reasonably believed that his action was necessary to avoid an imminent threat of danger or serious bodily injury to himself or others,
(2) the defendant did not intentionally or recklessly place himself in a situation in which it would be probable that he would be forced to choose the criminal conduct,
(3) there existed no other adequate means to avoid the threatened harm except the criminal conduct,
(4) the harm sought to be avoided was more egregious than the criminal conduct perpetrated to avoid it, and
(5) the defendant ceased the criminal conduct as soon as the necessity or apparent necessity for it ended.
The Court cited Reed v. State, 114 So. 3d 969, 972 n.5 (Fla. 5th DCA 2012).
“[P]aragraph 2 of the standard jury instruction on the defense of necessity contemplate an emergency threatening significant harm to the defendant or to “a third person.” See Fla. Std. Jury Instr. (Crim.) 3.6(k).
Holding of the Case
[A] claim of necessity is not available as a defense to a DUI charge in Florida when the asserted emergency involves the threat of harm to an animal instead of a person.
For More Information search for: Defense of Necessity, Fla. Std. Jury Instr. (Crim.) 3.6(k), felony DUI, Felony driving under the influence, 316.193(1), 316.193(2)(b)(1)