Washington Appeals Court Rules Necessity Defense Unavailable to Defendant Charged with Attempting to Elude

Often, a person charged with driving while under the influence will face additional, related charges.  Attempting to elude police is one such charge.  Sometimes, a person may feel they are justified in not stopping for the police officer, but a necessity defense is very difficult to prove in this type of case.

In a recent unpublished case, a Washington appeals court considered a defendant’s claim of necessity based on her statement that she did not stop because she was fleeing a person who had threatened her.

According to the opinion, the defendant ran a red light in front of an officer and failed to stop when he engaged the emergency lights.  The defendant stopped in front of a residence and tried to go inside.  The officer tackled her to stop her and subsequently arrested her for DUI.

The defendant refused to provide a breath sample.  After she was arrested, she told police she was fleeing from someone who had threatened her and described the vehicle he was driving.  The trial court ruled the defense could not cross-examine the officer about those statements, finding they were hearsay, but they could be admitted if an exception applied.  The defense did not argue there was an applicable hearsay exception or further seek to elicit those statements.

The defense attorney asked the officer why he did not require the defendant to perform a field sobriety test.  The officer testified he could not compel her to do the test because she had been arrested.  The trial court excluded the defendant’s efforts to show the officer was incorrect.

The defendant was convicted on both charges, and the jury also entered a special finding that the defendant refused the breath test.  The court sentenced her to 25 months for eluding.  The defendant appealed.

The defendant argued her attorney should have been allowed to question the officer regarding his belief he could not compel a field sobriety test after her arrest.  She argued the court’s denial of cross-examination on this issue kept her from presenting her defense by showing the officer was incorrect.  The appeals court found the excluded evidence to be of “very dubious relevance.” The appeals court found that the officer’s answer to the question of why he had not given the test was relevant, and impeachment of the answer was not.  It was not relevant whether his belief was actually legally correct.  The appeals court further found that the legal question was one for an expert in Washington law, rather than the officer.  Additionally, impeachment on this issue would be impeachment on a collateral matter, which is not allowed under Washington law.

The appeals court pointed out that the question at issue was whether the defendant was driving under the influence.  Although the officer’s investigation was subject to cross-examination, his legal belief was not.  Whether it was accurate was tangential to the issue before the court.  The appeals court found no abuse of discretion in the trial court preventing testimony on this issue.

The defendant also argued ineffective assistance of counsel because her counsel did not admit statements she made to the police that she was fleeing a person in another vehicle who had threatened her and use them in a necessity defense.  A new trial after ineffective assistance of counsel is only available to a defendant when the attorney failed to meet professional standards, and that failure resulted in actual prejudice to the defendant.

Necessity may be a defense when the defendant establishes that she committed an illegal act in order to avoid a greater harm, due to circumstances that she did not cause.  However, this common law defense is not available if there is a statutory defense.  The appeals court found that the defendant’s attorney conceded there was not a factual basis for a necessity instruction.

The appeals court noted that there was little information on the record to support a finding that a hearsay exception applied here because the argument was not raised at trial.  Furthermore, the defendant could have testified to the factual circumstances without relying on hearsay, but the defendant and her attorney made a tactical decision that she would not testify to prevent cross-examination and the exposure of prior felony convictions.  Tactical decisions cannot form the basis of an ineffective assistance of counsel claim.

Additionally, there is a statutory defense within the eluding statute, RCW 46.61.024.  The appeals court found that the existence of the statutory defense precluded the application of the common law necessity defense.

Finally, the appeals court found that a necessity defense was not available because the defendant had a reasonable legal alternative.  The court noted that the defendant could have pulled over for the officer, even if she were fleeing another person.  The appeals court found that someone fleeing the immediate threat of violence should accept the protection law enforcement could provide instead of continuing dangerous behavior.  Since there was a legal alternative, a necessity defense was not available.

The appeals court found that the defense attorney did not err in not pursuing the strategy of the necessity defense.

The appeals court affirmed the judgment and the sentence.

The appeals court provided multiple reasons that the necessity defense was not available to this defendant, illustrating the difficulty in succeeding with a necessity defense on an eluding charge.  The Seattle DUI attorneys at Blair & Kim, PLLC, understand the rules of evidence and available defenses in DUI cases.  We aggressively defend our clients.  If you are facing DUI or related charges, call us at (206) 622-6562 or contact us through our website to schedule a consultation.

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