# Is DWI Justified When Fleeing Abuse? | TadLaw

In most cases, there are not many legally valid excuses from DWI and drunk driving in Houston. But there are situations where a person accused of DWI may offer “necessity” as a defense.

Under the Texas Penal Code, a person accused of any crime may raise a defense that their conduct was “immediately necessary to avoid imminent harm.” The defendant must also show that the “desirability and urgency of avoiding the harm clearly outweigh” the harm sought to be prevented by the law in question.

In considering a **necessity defense**, a judge and jury must consider the “reasonableness” of the defendant’s conduct. Essentially, would an ordinary and prudent person in a similar situation have taken the same action as the defendant, even though they knew they were breaking the law?

Typically, in a jury trial it’s up to the jury to decide what is reasonable.

## Texas Woman Granted New DWI Trial

### So how can necessity be raised in a DWI case?

A recent decision from the Texas Third District Court of Appeals, [*Coolbaugh v. State*](https://accounts.google.com/v3/signin/identifier?continue=https%3A%2F%2Fscholar.google.com%2Fscholar_case%3Fcase%3D501641778445316695&dsh=S1127513064%3A1779428313624156&hl=en&flowName=GlifWebSignIn&flowEntry=ServiceLogin&ifkv=AWa2Pau-ZtKa1_fBQBE7_22KWpvLIjfj9o3MR1rZ13b5XN_1EWgDSvCedytqc8RTqtAFfLh48OFATg/), offers some guidance on this question. In this case, a trial judge actually prevented the jury from considering a necessity defense. The Court of Appeals held that was a legal error and ordered a new trial.

This case began early one morning in 2017 when a 911 dispatcher received a call reporting a vehicle driving down I-35 that could not maintain its lane. A police officer located the vehicle and initiated a traffic stop. The driver–the defendant in this case–was alone in the vehicle.

The defendant told the officer that she had been out drinking with her boyfriend earlier in the evening. After returning to their home, they got into a fight. The boyfriend later pulled the defendant out of bed and started choking her. She sustained multiple injuries and lost consciousness.

After regaining consciousness, the defendant said she grabbed her car keys and got into her car. The boyfriend started running towards her and hitting the windows of the car, screaming “this wasn’t over.” The defendant then started her car and fled the scene.

At trial, the defendant asked the judge to instruct the jury on a necessity defense. The judge declined. The jury subsequently convicted the defendant of DWI.

On appeal, the Third District Court of Appeals said the defendant met the statutory requirements for presenting a necessity defense to the jury. Based on the defendant’s evidence, she admitted to driving while intoxicated. But she did so immediately after suffering a “vicious assault by her boyfriend” and it “appeared that he was not done assaulting her.” Under the circumstances, the jury could have found the defendant acted reasonably in seeking to prevent imminent harm to herself. As such, she was entitled to a new trial.

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If you’re facing a drunk driving charge in Houston, there are a number of potential defenses you may be able to raise. Our experienced Houston DWI & drunk driving attorneys can review your case and advise you of your options. Contact Houston DWI Lawyer Tad Nelson & Associates today to schedule a consultation.

**We can be reached at [281-280-0100](tel:2815022122). Call us anytime.**

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