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Necessity Defense

Ohio defines affirmative defenses as those expressly designated as such by statute or those defenses involving an excuse or justification.  For driving under the influence, a necessity defense could be considered.

A necessity defense in a DUI case is one that attempts to prove the intoxicated driver was forced to get behind the wheel out of necessity. Ohio does not have a statute regarding this defense. However, it is upheld by common law. This unique defense could apply in certain situations, and a drunk driving defense lawyer in Cincinnati could help you determine if this is a wise approach for your case.

Cincinnati DUI Defense Attorney

The legal team at Joslyn Law Firm is passionate about representing the rights of people in the criminal justice system. The attorneys have years of experience dealing with DUI cases, and they understand the complexity of DUI charges. They understand the battle you face, and they can use their skill to build a strong defense against the charges.

If you have been charged with a DUI in the Greater Cincinnati area, including Hamilton, Middletown, Norwood, Lebanon, Fairfield, Butler, Mason, Oxford, Marysville and Wilmington, contact an attorney at Joslyn Law Firm. Your first consultation is free, so call (513) 339-6289 to discuss the facts of your case and see what defense would be best.


Information About Necessity Defenses in Ohio


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What is an Affirmative Defense?

Affirmative defenses are defenses the state legislature may have created and specifically designated as such. These defenses could include justification defenses, which mean a crime was committed but the actions were justified based on certain factors. A common example of an affirmative defense is self-defense.

For instance, a person could claim self-defense in an assault case no matter how much evidence is presented against them. If the accused admits to assaulting a person, but proves he or she did so in self defense, the affirmative defense could prove valid. In this case, the person would be admitting to the crime, but explaining his or her actions as necessary.

With these defenses, the defendant must take the initiative to prove them. This means the defendant and his or her attorney have the burden of going forward with the evidence and the burden of proof by a preponderance of the evidence.


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Arguing Necessity Defenses in DUI Cases

In DUI cases, drivers can argue the necessity defense. This generally means the driver is admitting to be intoxicated behind the wheel or while in actual physical control of a vehicle. However, as a result of City of Kettering v. Berry, 57 Ohio App.3d 66, there are five elements that must be proven to show necessity:   

  • The harm must be committed under the pressure of physical or natural force, rather than human force
  • The harm sought to be avoided is greater than or at least equal to that sought to be prevented by the law defining the offense charged
  • The actor reasonably believes at the moment that his or her act is necessary and is designed to avoid the greater harm
  • The actor must be without fault in bringing about the situation
  • The harm threatened must be imminent, leaving no alternative by which to avoid the greater harm

A necessity defense in DUI cases means a person must prove he or she got behind the wheel to prevent a greater evil. The accused also must prove he or she had no other options and that the "greater harm" he or she attempted to avoid was more serious than the potential harm caused by drunk driving.

As with self-defense, a necessity defense typically is difficult to prove. It can only be applied in instances in which the “greater harm” that is to be avoided is illegal. It often can be complex, but a skilled attorney can help to ensure your voice is heard.


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Finding the Best DUI Defense Lawyer in Hamilton County

Necessity defenses may not be available in every drunk driving case, but a skilled and experienced OVI defense attorney at Joslyn Law Firm can help you determine if it would be suitable in your situation. The attorneys at Joslyn Law Firm have years of experience providing high-quality legal counsel. They can help you fight the charges you face and defend your freedom. Call (513) 339-6289 today.

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