"Necessity" as a DUI Defense in Nevada
Explained by Las Vegas Criminal Defense Attorneys

Driving drunk in Nevada is not always illegal. If it was out of absolute "necessity," then the defendant should not be convicted.1

Three of the most common scenarios where necessity may excuse a DUI in Nevada are:

  1. driving a dying person to the hospital
  2. driving to escape a killer or other harmful person
  3. driving to escape a natural disaster

On this page, our Las Vegas criminal defense attorneys discuss the Nevada DUI defense of necessity. Continue reading to learn how claiming necessity can get a charge for the Nevada crime of DUI dismissed.

Necessity Defense in Nevada DUI Cases:

There are several possible defenses to Nevada DUI charges. Often they concern police mistakes, such as incorrectly administering the Nevada field sobriety tests. Others have to do with the defendant's medical conditions causing false positives on the Nevada DUI breath tests. A rarely used but very effective defense is necessity.2

When Nevada DUI defendants claim necessity as a defense, the defendants are not denying that they drove drunk or high. Instead, they are arguing that an emergency situation called for them to drive drunk or high. Examples of emergency situations where an intoxicated person may be able to drive legally out of necessity are:

Flash 20flood optimized
A person may be able to drive inebriated in Nevada out of necessity, such as escaping a flash flood or tornado.
  1. No one but the drunk driver is available to drive a critically ill person to medical care, and 911 is unresponsive,
  2. The drunk driver is fleeing someone trying to injure or kill him/her, and there are no other means of escape, or
  3. The drunk driver is fleeing a fire, flood, or other natural disaster, and there are no other means of escape

Note that Nevada law remains unclear as to what exactly a defendant needs to show the court in order get a DUI charge dismissed based on necessity. But the Nevada Supreme Court has specified one central component of the necessity defense:

  • That the defendant did not substantially contribute to the emergency that prompted him/her to drive drunk to begin with.3

Therefore, necessity works as a defense to Nevada DUI charges only in a narrow set of circumstances where the defendant's actions did not bring about the emergency. Henderson NV criminal defense attorney Michael Becker gives an example of where necessity would probably result in the DUI charges being dropped:

EXAMPLE: Brenda and Barry go out to a Las Vegas club late one night. Brenda is the designated driver and does not drink. After the club, Brenda is driving Barry back home. On the way, Brenda has a seizure and cannot drive. Barry tries to call 911 but cannot get a signal. He then tries to flag down another driver, but the few drivers still on the road do not stop for him.

Barry knows Brenda will die without prompt medical treatment, so he decides to take the wheel and drive Brenda to the closest ER. En route, a Las Vegas Metropolitan Police Department cop pulls him over for a broken tail light and smells the alcohol on him. Barry explains the situation, and the cop calls an ambulance for Brenda. But at the hospital the cop has Barry perform the field sobriety tests, and Barry agrees to take a breath test. Barry fails the tests, and the cop arrests him for DUI and books him at the Clark County Detention Center.

In the above example, Barry readily admits to driving while drunk. However, a judge or jury would probably agree that he did not substantially contribute to the emergency that prompted him to take the wheel for the following reasons:

  • Barry brought Brenda as the designated driver to the club, which indicates that he never had any intention of driving drunk.
  • Brenda had a seizure, which Barry did not cause nor could have foreseen.
  • Barry's first actions were to call 911 and solicit aid from other drivers, and it is not his fault he could not get a signal and that no one else would help.
The necessity defense may excuse drunk driving in emergency situations not of the driver's own making.

In short, Barry took every possible action to avoid driving drunk that night. It was only after every other avenue failed that he reasoned that Brenda's greatest chance of living lay with him getting her to the hospital as soon as possible.

In his situation, Barry's decision to drive while impaired was probably the most responsible thing he could have done. Arguably, any reasonable person in Barry's place would have acted in the same way. So the necessity defense may get him off the hook for a Nevada DUI charge.

Imperfect Necessity Defense in Nevada:

Just because a drunk driver truly felt he/she was acting out of necessity does not mean the court will buy the argument and excuse the DUI. If the defendant substantially contributed to the underlying emergency, or if the defendant had any other reasonable alternative to driving, the necessity defense will probably not work in Nevada.

Examples of an imperfect necessity defense...where necessity would not be a valid Nevada DUI defense...are:

  1. Driving to the hospital without calling 911 first. Even though this is an emergency situation that may not be the driver's fault, the driver could still be held accountable for DUI since he should have called for help;
  2. Driving to the airport to make a flight. Courts would not consider missing a plane as a valid emergency situation that would justify driving drunk, especially if the driver could have used public transportation.
  3. Moving a car out of a restricted parking lot. Even if the driver was not responsible for parking there in the first place, the risk of getting towed or ticketed are not great enough for courts to excuse a DUI.

A real-world example of where necessity did not exonerate the driver comes from the 2010 Nevada Supreme Court case Hoagland v. State:

In this case, Mr. Hoagland was sleeping drunk in his car in a Salvation Army employee parking lot. A security officer woke him and ordered him to move off the private property. Afraid that his car would be impounded if he did not comply, Mr. Hoagland began driving his car and backed into another parked car in the process. Cops arrived and arrested Mr. Hoagland for DUI.

Mr. Hoagland claimed necessity because he was just following the instructions of the security officer, and he risked impoundment otherwise. But the Nevada Supreme Court held that the entire situation could have been avoided had not Mr. Hoagland parked in the employee parking lot to begin with, which was his choice. Therefore the necessity defense was unavailable to him.4

Necessity in a Nevada DUI Trial:

If a Nevada DUI defendant may have a valid necessity defense claim, the defense attorney would first discuss it with the prosecution. The D.A. may then agree to dismiss the charge or at least offer to reduce it to a lesser offense such as the Nevada crime of reckless driving. But if the D.A. disagrees that the defendant has a valid necessity defense, then the defendant may consider taking the matter to trial.

During the trial, the defense can call witnesses and present evidence that the defendant committed DUI out of necessity. If the judge deems that the defendant offered sufficient evidence to support his/her necessity defense, then the court will agree to instruct the jury (if it is a jury trial) that they have the option of acquitting the defendant of DUI due to necessity.5

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Call us at 702-DEFENSE (702-333-3673).

Arrested for DUI? Call us…

If you are facing charges of drunk driving in Nevada, call our Las Vegas Nevada DUI Attorneys at 702-DEFENSE (702-333-3673). We may be able to use necessity or other defenses to persuade the prosecutor to reduce or dismiss your charges without a trial.

For information on the California necessity defense, see our page on the California necessity defense.

Legal References:

1Hoagland v. State, 240 P.3d 1043 (Nev. 2010).

2Id. at 1046 ("Accordingly, the necessity defense is limited and should be narrowly construed.").

3 Id. at 1047 ("While we have not formulated the elements of the necessity defense to DUI, authority from other jurisdictions consistently include one element—whether the defendant presented sufficient evidence to show that he did not substantially contribute to the emergency or create the situation.").


5Id ("[A] defendant must proffer sufficient evidence to support each element of the defense.").




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