After a bad break-up, Dan drives to a local bar, where he begins drinking. He hasn’t planned in advance how he is going to get home. If he drinks too much to drive, he thinks, he will summon a ride on his smart phone. Dan is on his seventh drink in two hours when a man storms through the front door of the bar, waving an assault rifle and threatening to shoot up the place. Dan bolts for the nearest exit, jumps in his car, and drives away. Less than a half-mile away from the bar, Dan runs through a red light and is stopped by a law enforcement officer. Dan is subsequently charged with driving while impaired. At trial, he asks the judge to instruct the jury on the defense of necessity. Is Dan entitled to that instruction?
Tag Archives: necessity
Several interesting stories have cropped up over the past week.
1. In Moore County, a woman who was convicted in district court of DWI and speeding was acquitted on trial de novo in Superior Court. The unusual aspect of the case is that she admitted both offenses, but asserted the defense of necessity. According to the Pilot, she testified that her son had been seriously ill the week before. On the night in question, he suddenly doubled over in pain, told her he could not breathe, and said he thought that he was dying. She rushed him to the hospital at over 80 m.p.h. despite a BAC of .14, the result of having “drunk a glass of wine preparing dinner and several beers while cleaning the kitchen and doing laundry.” The state argued that she should have called 911, or asked a nearby sober relative to make the hospital run instead.
2. Justice Thomas hasn’t asked a question at oral argument in over four years. Tony Mauro, at the National Law Journal, asks whether Justice Thomas ought to be more talkative in court. Apparently, a recent graduate from the University of Florida law school has written an article arguing that Justice Thomas’s legal theories don’t get completely vetted because he doesn’t air them at oral argument. I suspect that they get pretty completely vetted by his clerks and by the other Justices at conference, but my knowledge of the Court’s inner workings is admittedly thin.
3. Also relevant to Justice Thomas, the law library at Yale has started collecting Supreme Court bobblehead dolls. Seriously. You can read about it, and see a couple of pictures, in the New York Times. (Hat tip: Crime and Consequences). Justice Thomas is apparently next in line to be bobbleheaded, a term that I just coined. Although the existing bobbleheads make noise — such as “reading” the relevant Justices’ famous opinions — I wonder if the Justice Thomas bobblehead will be silent.
4. The Associated Press reports that two guns used in the recent shootings at the Pentagon and the federal courthouse in Las Vegas were both, at one time, in the hands of the Memphis, Tennessee police. The guns were “sold by a judge’s order [in both cases, to a federally licensed firearms dealer] and the proceeds were given to the [local] Sheriff’s Office.” This has led to a modest national controversy about how guns seized by police should be handled, with some arguing that they should always be destroyed and others arguing that destruction of a legal product is a pointless waste of resources. The North Carolina statute on point is normally G.S. 15-11.1(b1), which requires a judge to rule on the disposition of guns seized as evidence. Several dispositions are possible, including return to the rightful owner (if the defendant isn’t the rightful owner), return to the defendant (if the defendant is the rightful owner and is not convicted of a crime related to the gun), destruction, or sale to a licensed dealer.
5. The Senate unanimously passed a bill that would reduce, but not eliminate, the disparity in the federal courts’ treatment of crack and powder cocaine offenders. It’s now on to the House, where the key question appears to be whether it will simply pass the Senate bill or whether it will push for crack and powder offenders to be treated identically.
6. Oklahoma is considering a bill that would make the rape of a child under six years old a capital crime under some circumstances. But wait, you ask, doesn’t that fly in the face of Kennedy v. Louisiana, in which the Supreme Court held that “a death sentence for one who raped but did not kill a child . . . is unconstitutional under the Eighth and Fourteenth Amendments”? In a word, yes. Supporters of the bill contend that the changed composition of the Court means that the time is ripe for a challenge to Kennedy. Doug Berman at Sentencing Law and Policy makes a different point: “[T]he fact that the Supreme Court has persistently asserted that the Eighth Amendment is responsive to ‘evolving standards of decency’ supports and justifies elected bodies expressing through legislation and other means their current view of these constitutionally significant standards. Indeed, I think the passage by Oklahoma and a number of other states of focused capital child rape legislation ought to prompt the Supreme Court to reconsider its Kennedy ruling. After all, the Supreme Court has repeatedly reversed prior precedent to narrow the reach of the death penalty when more state legislatures have enacted laws that narrow their own capital statutes.”