Necessity Defense for Criminal or DWI Charges in New Jersey

Defending a DWI or Criminal Case with a Necessity Defense Strategy in NJ

New Jersey Criminal Attorney Explains Defense of Necessity In New Jersey, a defense to murder or other unlawful acts is a necessity or some further justification. For example, self-defense is a justifiable defense against murder. While it is illegal to murder, a defendant may justifiably kill another for self-preservation. However, the law does not take justification lightly. A defendant must establish that there was an immediate need or provocation that turned an illegal act, killing someone, into a justifiable act exception to punishing an otherwise wrongful act. Each situation determines whether justification or necessity exists. The law that covers this complex and challenging area of criminal and DWI defense is N.J.S.A. 2C:3-2. This is among the most nuanced affirmative defense strategies that may be used to beat a criminal or quasi-criminal case such as a DUI charge.

Requirements for a Defense of Necessity in New Jersey

There are some essential criteria that the defense must meet in order to successfully employ a defense of necessity. The New Jersey Supreme Court further clarified the law in this area in the case of State v. Josephs. In order to argue necessity or justification when defending your criminal or DWI case, the following requirements are necessary:

  1. The defendant faced a perceived risk of harm;
  2. The defendant did not foster or contribute to the risk of harm or threat;
  3. The defendant could not avoid the harm without violating the New Jersey law in question; and
  4. The potential harm was sufficiently significant to outweigh the criminal statute’s intention.

When You Can Successfully Claim Necessity to Beat a NJ Criminal Charge

The defense elements include an arising emergency that the defendant did not cause, one that suggests a reasonable expectation of immediate and compelling harm to the defendant or someone the defendant was protecting. Additionally, the emergency is unavoidable, and the anticipated injury is severe enough to outweigh the gravity of the criminal or quasi-criminal offense.

In the same vein, murder committed in the heat of passion after being reasonably provoked clears a defendant of murder and reduces the charge to manslaughter. The defense must show that the provocation rose to the level of firing up a defendant’s passions immediately, without a cooling off time between provocation and the response to it, and such response caused death. They must also show that the defendant did not cool off before causing another’s death (N.J.S.A. 2C:11-4b(2)). Thus, when a victim dies in mutual combat, the court may instruct the jury on manslaughter.

Example of a Successful Necessity Defense for a DWI Charge in NJ

In a notable DWI case, State vs. Romano, the defendant successfully proved the necessity to beat a DWI. He was entitled to an acquittal after asserting at his trial that he had no choice but to drive after drinking because he was escaping attackers who meant to kill him. The police stopped the defendant because he was driving at night without his headlights on. They found him covered in blood a short distance from a restaurant bar when they stopped him. His injuries confirmed his assertion that attackers beat him in the parking lot, and he escaped by driving off. The police took him to the hospital, where his blood alcohol concentration registered at .16%, far above the .08% legal limit.

On appeal from the municipal court DWI conviction, the Appellate Division explained the common law defense of necessity, otherwise known as the “choice of evils” defense. The court further explained that the public policy supporting a necessity defense admits that the legislature cannot predict each situation warranting an exception, but had the legislature anticipated the circumstances of a situation warranting a “choice of evils” exception, it would have created such an exception. On the other hand, when the legislature has anticipated the balance of competing values, the court must abide by the law. Since the municipal court placed the burden of proof on the defendant and not on the state to disprove the defense beyond a reasonable doubt, the defendant’s acquittal was necessary.

Examples of When a Justification Defense Did Not Meet the Burden of Proof in NJ

DWI Example

In State vs. Han, the Appellate Court found that the defendant’s emergency did not outweigh the gravity of the offense to support a justifiable necessity defense. In this case, the defendant drove drunk after drinking at a karaoke bar with a friend, who tripped outside and severely wounded herself. The friend insisted the defendant take her to the hospital. However, the police stopped the defendant after she made an illegal U-turn. The police then sent the injured friend to the hospital by ambulance. Even though the injury was severe, the Appellate Court reasoned that the defendant could have called for an ambulance or sought help from bar patrons. Thus, her drunk driving was not justifiably necessary to overcome the public policy behind DWI laws, which is to protect the public. The court distinguished these facts from Romano’s, which were extraordinary circumstances.

Criminal Example

In another case, State vs. Josephs, the New Jersey Supreme Court reviewed the lower court facts and found no justifiable necessity or other justification for acquitting the defendant of murder. The defendant was convicted of purposeful or knowing murder by his own conduct of two victims and conspiracy to murder four people. As a result, the jury sentenced him to death. “By his own conduct” means that the defendant intentionally shot the gun or assaulted the victim with a blunt object to cause fatal harm, either of which caused the victims’ deaths.

The facts revolve around a drug distribution dispute, and the murders were unwitnessed. The jurors based their murder conviction on circumstantial and forensic evidence. Neighbors heard what seemed to be a scuffle or wrestling in the apartment before the sounds of shots or what one witness described as a jackhammer. The victims lived in the apartment, and one victim was going to throw the defendant and his brother out of the apartment.

The evidence from forensic scientists showed the victims’ deaths resulted from blunt force wounds from a steam iron and gunshots from three different guns. The two brothers were held responsible for the murders, but the defendant’s conviction only concerned two victims. Since the trial judge gave improper jury instructions regarding the defendant’s “own conduct,” the defendant’s capital conviction of murder by his own conduct did not stand on appeal, but the murder convictions did stand.

The defense argued that the defendant acted in self-defense, which is a defense to murder when the defendant reasonably believes force is necessary to protect his life against one unlawfully threatening his life with force. The defendant asserted the evidence of fighting sounds suggested the defendant used deadly force to defend his own life. The defense supported the self-defense claim because a struggle or fight appeared before the gunshots, and using the steam iron to strike one victim suggests self-defense or defense of another. While the Supreme Court found the self-defense theory speculative and unsupported by the evidence, it reiterated the statutory burden of proof on self-defense.

Burden of Proof to Justify Necessity for Use of Force in NJ

There is a specific burden of proof to argue use of force in self-protection in New Jersey. In these cases, it is not up to the jury to find beyond a reasonable doubt that the defendant acted with reasonable belief in the necessity to defend his life, but the state must prove beyond a reasonable doubt that self-defense is unsupported. All the defendant must present is evidence of justifiable need or self-defense according to N.J.S.A. 2C:3-4. In addition, a defense to murder is the justifiable use of force to protect another person who would be justified in protecting their life in self-defense against another threatening it. The person defending another’s life must reasonably believe the person was unlawfully attacked in these instances.

Go Over Your Defense Options with a Criminal Law Attorney Today

As the nuances on what is justifiable, reasonable, sufficient force, and imminent are legal interpretations in statutory and case law in New Jersey, you should contact a criminal defense lawyer at The Tormey Law Firm to discuss your specific criminal or DWI matter and get help determining whether your use of force or commission of an unlawful act is excusable necessity or self-defense. A New Jersey criminal attorney at our experienced defense firm who has knowledge of the statutory and case law, can approach your case and all of the evidence to ascertain the best defense strategy for your circumstances. Whether your charges can be beaten by qualifying as an exception to the regulations, or through an alternative avenue, we meticulously comb through the facts and evidence to assemble the most compelling defense. Speak to a criminal defense lawyer about possible defenses to your charges by contacting our offices at (201)-556-1570 for a free consultation today.


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