# Is Necessity a Defense to Drunk Driving? | TadLaw

Everyone knows you are not supposed to [drive while intoxicated](https://tadlaw.com/practice-areas/). But are there situations where you *have* to drive drunk in order to save the life of yourself or someone else? And if so, does this excuse you from any criminal liability?

## Thirteenth Court of Appeals Speaks on the Issue

### “Defendant Never Admitted to DWI, So She Could Not Plead Necessity”

There is, in fact, what is known as the “necessity defense” in the Texas Penal Code. Essentially, a criminal defendant can assert necessity as an affirmative defense if they can show their conduct was “immediately necessary to avoid imminent harm” and their actions “clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct.”

In order to assert a necessity defense, however, you must actually admit to the underlying illegal conduct. In other words, if you plead necessity as a defense to DWI, you are admitting to drunk driving. You are merely arguing that your actions were necessary under the particular circumstances of your case.

**A recent decision from the Thirteenth Court of Appeals, [*Maciel v. State*](https://accounts.google.com/v3/signin/identifier?continue=https%3A%2F%2Fscholar.google.com%2Fscholar_case%3Fcase%3D16678524179128202515&dsh=S1127513064%3A1779733669976290&hl=en&flowName=GlifWebSignIn&flowEntry=ServiceLogin&ifkv=AWa2PasBDQoSFE6dkuMnidBSYAKCa6tgQuX2ReSKS4r96GJog8QNPJel78wzKv8jkL1er7gJBJc/), illustrates the critical role admission plays in a DWI necessity defense.**

The defendant in this case had been out drinking with her brother and sister-in-law. The defendant acknowledged that she was “intoxicated to the point where she did not feel safe to drive.” The defendant’s brother was therefore driving her car.

However, after the brother started vomiting, the defendant took the wheel and decided to “try and move [her] car out of the middle of the road to the closest parking lot to figure out how to get home from there.” But the car stalled.

A police officer then saw the defendant’s vehicle stopped in the middle of the road and initiated a traffic stop, which led to the defendant’s DWI arrest.

**At trial, the defendant requested a jury instruction on necessity.**

The defendant’s position was that regardless of her intoxicated state, she had to try and move the vehicle because her brother was facing imminent harm. At the same time, the defendant insisted she was not technically committing a DWI as she was not “driving or operating” her vehicle as defined by law.

**The trial judge declined to issue the instruction, and a jury ultimately found the defendant guilty of DWI.**

On appeal, the Thirteenth Court of Appeals said the trial judge did not err in refusing to give the necessity instruction. The main reason was that the defendant never fully admitted to the DWI, which is a necessary element of any necessity defense. “Because [the defendant] denied she operated the vehicle, she denied she committed the offense of DWI,” the appeals court explained. For this reason alone, she could not plead necessity as an affirmative defense.

For a free legal consultation, call [(281) 280-0100](tel:+12812800100) today

## Hampered by a DWI Case of This Nature?

### Contact Houston DWI Lawyer Tad A. Nelson Today!

A criminal charge of DWI is a serious matter. Even a first offense can land you in jail depending on the circumstances of the case.

For this reason, it’s important to work with a criminal defense attorney with significant experience in representing individuals charged with DWI.

**For more information and to start working on relief from criminal charges, Call the Law Offices of Tad Nelson & Associates in Houston, Galveston or League City today at [281-280-0100](tel:281-280-0100).**

Call or text [(281) 280-0100](tel:+12812800100) or fill out our [Free Case Evaluation Form](https://tadlaw.com/contact-us/) to get started

DWI Blog Posts:  [DWI Blood Testing and Texas Law DWI In a recent post, we discussed the exigent circumstances exception for warrantless blood-alcohol testing currently being considered by the U.S. Supreme Court....](https://tadlaw.com/blog/dwi-blood-testing-and-texas-law/)   [Texas Ceremony Honors DWI Officers DWI Texas readers who question whether local authorities are investing more time and money into drunk driving enforcement efforts need only read about...](https://tadlaw.com/blog/texas-ceremony-honors-dwi-officers/)   [Texas District Attorney Arrested for DWI DWI Government or public figures implicated in a scandal may take a variety of approaches. Some may deny all charges, while others offer...](https://tadlaw.com/blog/texas-district-attorney-arrested-for-dwi/)   [DA Serves Half of DWI Sentence DWI This blog has profiled some of the penalties brought by Texas enforcement officials against individuals accused of driving while intoxicated, as well...](https://tadlaw.com/blog/da-serves-half-of-dwi-sentence/)

---

Source: https://tadlaw.com/blog/is-necessity-a-defense-to-drunk-driving/