1:9. Necessity defense

In Commonwealth v. Kendall, the Supreme Judicial Court held that while the necessity defense is available in an Operating Under the Influence case, the defendant did not make a showing that there were no effective legal alternatives for abating the emergency and therefore the defense's request for a jury instruction was properly denied. In Kendall, the defendant and his girlfriend went out for drinks. They were able to travel to the establishment on foot because it was no more than a ten-minute walk from the defendant's trailer home. Over the course of several hours, the defendant and his girlfriend consumed enough alcohol to become intoxicated. They left the establishment around 10 P.M. and walked to a nearby Chinese restaurant to get something to eat. The kitchen was closed, but the bar remained open and they each consumed another drink. The girlfriend wanted to stay at the restaurant for additional drinks, but the defendant persuaded her that they should return to his home. After they walked back to the defendant's trailer, he opened the door for her and she went inside, stopping at the top of the stairs to remove her shoes. As the defendant entered the trailer, he stumbled and bumped into her, causing her to fall forward and hit her head on the corner of a table. The impact opened a wound on her head, and she began to bleed profusely. The defendant was unsuccessful in his efforts to stop the bleeding, so the two decided to seek immediate medical attention. The trailer did not have a telephone, and neither the defendant nor his girlfriend had a cellular telephone. Approximately seventy-five to eighty other trailers were located in the mobile home park (each about twenty-five feet apart), at least one nearby neighbor (who lived about forty feet from the defendant) was at home during the time of the incident, and a fire station was located approximately one hundred yards from the neighbor's home. Nonetheless, the defendant and his girlfriend got into his car, and he drove her to the emergency room.

The common law defense of necessity is available in limited circumstances. It can only be raised if each of the following conditions is met: (1) the defendant is faced with a clear and imminent danger, not one which is debatable or speculative; (2) the defendant can reasonably expect that his action will be effective as the direct cause of abating the danger; (3) there is [no] legal alternative which will be effective in abating the danger; and (4) the Legislature has not acted to preclude the defense by a clear and deliberate choice regarding the values at issue.

In those instances where the evidence is sufficient to raise the defense of necessity, the burden is on the Commonwealth to prove the absence of necessity beyond a reasonable doubt.

A divided court held that:

This is not a case where, because of location or circumstances, there were no legal alternatives for abating the medical danger to [the girlfriend]. Moreover, there has been no showing by the defendant that available alternatives would have been ineffective, leaving him with no option but to drive while intoxicated. Because the defendant did not present at least some evidence at trial that there were no effective legal alternatives for abating the medical emergency, we conclude that the judge did not err in refusing to allow counsel to present a defense of necessity and in denying his request for an instruction on such a defense.

The dissent found that:

The problem with the court's decision is that it puts unreasonable demands on the defendant to show in every instance that he has tested the legal alternatives. In this case, the court apparently requires the defendant to have knocked on a neighbor's door or walked to the fire station or Chinese restaurant. This is too burdensome a threshold. To get to the jury, the defendant need only present evidence that he did not explore the legal alternatives because he reasonably deemed them to have been too high a risk, and he was, applying an objective standard, entitled not to have pursued them. Cf. Com. v. McCambridge, 44 Mass. App. Ct. 285, 291, 690 N.E.2d 470 (1998) (Commonwealth's argument that defendant had legal alternative and thus was not entitled to instruction on necessity defense improperly “ignore[d] the fact that the legal alternative must be effective”). If it was unreasonable to forgo the lawful alternatives, then the defendant has not made out a case that should go to the jury.

The legal alternatives available to the defendant here carried considerable risk of failure. The defendant had already spent valuable time attempting to stop [the girlfriend's] bleeding using towels, but was unable to do so. The first neighbor from whom the defendant might have sought help might not have owned a car, or might have been unable or unwilling to drive [the girlfriend] to a hospital; the defendant would then have had to proceed to other neighbors, or to the fire station, where there might not have been anyone available to help; even had there been, it could have meant unacceptable delay in getting a badly injured person to the hospital. In short, any of the alternatives proposed today by the court would have consumed valuable time to no purpose; their exploration raised the real possibility of a chain of events that could have resulted in [the girlfriend's] serious injury or death. Given the element of risk associated with the situation and the uncertain likelihood of success with respect to the legal alternatives, a jury could find that it was reasonable for the defendant to reject those alternatives and to select the unlawful solution because of the greater likelihood that it would work. The court's decision, however, punishes a reasonable person for taking the “lesser evil” of the unlawful but more effective alternative.

1:10. Judicial notice

Research References

West's Key Number Digest, Criminal Law &key;255.3

West's Key Number Digest, Criminal Law &key;260.11(6)

West's Key Number Digest, Criminal Law &key;304

C.J.S., Criminal Law §§657 to 678

The ingredients and strength of certain drinks and the strength of drinks at particular restaurants and bars are not proper subjects for judicial notice and therefore a trial judge's reliance on his own personal knowledge of such information required reversal.

1:11. Combined effect of alcohol and drugs

Research References

West's Key Number Digest, Automobiles &key;332

West's Key Number Digest, Automobiles &key;355(6)

C.J.S., Motor Vehicles §§1382 to 1394

C.J.S., Motor Vehicles §§1408 to 1411

C.J.S., Motor Vehicles §1545

Another issue that arises in the context of impairment is the “combined effect” of alcohol and other drugs. This issue may involve illicit or prescription drugs. In Commonwealth v. Stathopoulos, a case involving the consumption of alcohol and illicit drugs, the Supreme Judicial Court held that a defendant may be found guilty of driving while under the influence of intoxicating liquor if the defendant's ability to operate a vehicle safely is diminished, and alcohol is one contributing cause of the diminished ability.

In Stathopoulos, the defendant had a breath alcohol reading of .07% and was acting irrationally. A post-arrest search of the defendant yielded five yellow pills, which on later chemical analysis were determined to contain phencyclidine (PCP), a Class B controlled substance. The defendant attempted without success to recover and swallow the pills, became violent, had to be restrained by leg irons as well as handcuffs, and was taken to Massachusetts General Hospital for several hours of observation.

On cross examination, testimony was elicited from the officer who administered the breath test that the .07 reading was inconsistent with the irrational behavior which the defendant had exhibited in the police station and that the defendant in his opinion had been under the influence of a combination of alcohol and something else.

The court stated that the jury in a circumstance such as this should be instructed that it is sufficient if the alcohol tended to magnify the effect of the liquor or concurred in causing the defendant's diminished capacity to operate safely.

Practice Note
The prosecution must still prove that the illicit drug is one of those defined in M.G.L.A. c. 90, §24. (See §1:15, Operating Under the Influence of Drugs). If the allegation is that alcohol was combined with prescription medication, and the medication enhanced the effects of the alcohol, the prosecution must prove that the defendant knew or should have known of the possible side effects. Once the prosecution has met that burden, it is not a defense that the prescription medication was a concurring cause as long as the alcohol was one of the causes.

(Taken from Drunk Driving Defense in Massachusetts, pg. 38-41)