Not Guilty of DUI When Assaulted By Boyfriend/Necessity Defense

The Defense: Necessity

A 25 year old woman, Marlise Paulo, was allegedly given a cut scalp and a black eye by her boyfriend before he cornered her in her car. To escape, she drove away, driving the wrong way on a one way street, drawing the attention of CHP officers, who arrested her for DUI.

The couple had attended a 49er football game in San Francisco in September 2013. After the game they went to the Crazy Horse strip club on Market Street. The boyfriend, from Butte County, according to testimony, refused to stop spitting tobacco juice on the floor of the strip club and then got mad at Marlise when he was kicked out of the club. Later, back at the hotel, the boyfriend allegedly gave Marlise a black eye, among other injuries. She hid in the bathroom until he left. Later, while she was hiding in her car, the boyfriend reappeared and began pounding on the car windows. In fear, she drove away, driving for 4 blocks before turning the wrong way on Bryant Street where she was arrested.

She was defended by Public Defender Abe Abed, who presented evidence that Marlise was in fear for her life and had "no other option but to drive off". The jury agreed and acquitted Marlise of misdemeanor DUI charges.

The DUI Defense of Necessity

To be a successful, a defendant claiming necessity must be faced with the threat of serious injury or death if they did not drive when they were arrested. Let's look at the facts that helped Marlise and her attorney win this case.

  • She Faced Eminent Serious Injury or Death if She Did Not Drive.

Marlise had already been injured by the boyfriend and was in danger of being further attacked while he pounded on the car windows. Even if she had time to call 911, help would be too slow to arrive in time to keep her from suffering further injury. Since she had already been injured the harm she feared was more than speculative. Also, the threatened physical harm was happening to her right then, and she needed to get away from her attacker right then.

  • Once the Necessity Ends the Driving Must End.

Marlise was about 4 blocks away when she was stopped by the CHP. The question for the jury then became; has the necessity to drive ended because the boyfriend is no longer a threat? The prosecutor argued the necessity to drive had ended but the jury did not agree. The jury decided that in 4 blocks the boyfriend could reasonably have caught up with her. If she was 8 blocks away when the CHP stopped her the jury might have decided that she could have exited the car and sought help or another form of transportation.

  • There Cannot be any Reasonable Alternative to Driving at the Time of the Necessity.

In this case, Marlise was trapped in the car with her boyfriend trying to break into the car assault her. She was trapped in the car and any help she could have called on her cell phone was too far away to give her immediate protection. The jury decided that driving away was the only way for Marlise to keep herself from being injured or worse. An important factor in the jury's decision was that the boyfriend had already hurt Marlise as opposed to her just speculating that the boyfriend might hurt her. There are no hard and fast rules here, but the less likely the threat of injury, the less likely the necessity defense will prevail.

  • The Person Claiming the Necessity Defense Cannot Have Substantially Contributed to the Circumstances That Caused Driving.

Evidence heard the trial showed Marlise was not the aggressor in the assault by her boyfriend. She was not confronting him or deliberately provoking him. For instance, one cannot get drunk and torment a growling dog until the dog attacks, causing the drunk person to drive a car to escape the attacking dog.

The Law Office of Joe Whittington and Associates is committed to finding defenses like the Necessity Defense and making them work in Kern County Courts. We are experts in the use of the California Vehicle Code and the Evidence Code to present your defense in a way that the Courts and District Attorney will take notice. Your defense is only as good as the way it is presented. Let us help you. The Necessity Defense is only one of many defenses to DUI. There are many defenses you may not even be aware of. Don't leave you DUI defense to chance. Call, or e-mail us 24/7 for help.


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*'Success' means that the original violation that the officer or district attorney charged our client with was dismissed. In many cases the charge(s) were dismissed altogether. In other cases our clients were found not guilty after trial. In other cases our clients pled to lesser offenses, usually with "0" point resolutions.

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