{"id":1897,"date":"2012-08-03T05:39:51","date_gmt":"2012-08-03T05:39:51","guid":{"rendered":"http:\/\/www.markagallagher.com\/socaldefenselawyers\/necessity-defense\/"},"modified":"2020-10-30T20:48:23","modified_gmt":"2020-10-30T20:48:23","slug":"necessity-defense","status":"publish","type":"post","link":"https:\/\/www.markagallagher.com\/socaldefenselawyers\/necessity-defense\/","title":{"rendered":"Is it ever legal to break traffic laws?"},"content":{"rendered":"
\"Necessity<\/a>
LA traffic lawyer Mark A Gallagher discusses the necessity defense and how it can help you beat a traffic ticket<\/figcaption><\/figure>\n

The Necessity Defense. \u00a0Is it ever legal to break traffic laws? As a California criminal defense lawyer<\/a>, I hear this question all the time from potential clients. \u00a0 \u00a0I usually get a call on the 800 line at 800-797-8406 that starts with “I got a ticket<\/a> but it’s a bullshit ticket…….”. \u00a0And then the good part comes. \u00a0I hear things like, “I have been running that stop sign for 14 years without getting a ticket, so how can it be illegal today?” \u00a0or maybe, “I was like 2 blocks in front of my house, so it can’t be a DUI!, I almost made it home!”. \u00a0 \u00a0Unfortunately people, these things are not lawfully valid defenses. \u00a0 \u00a0So what is a valid defense?<\/p>\n

Legal Defenses that work in Traffic Court<\/h2>\n

Well there are lots of legal defenses that work in California traffic courts<\/a>. \u00a0For example identity is always a good issue. \u00a0 Was that really you who ran the red light when the camera went off<\/a>? \u00a0Or did somebody else use your name? \u00a0Did the officer get a thumprint? See photo ID? Verify height, weight and physical characteristics to to match the ID presented? \u00a0 Other good issues include the basic speed law and the speed trap defense. \u00a0 In any traffic stop it’s always a good idea to check for probable cause too. \u00a0When we see a ticket for no insurance VC 16028(a) with nothing else charged on the ticket, you kind of have to wonder why that guy was stopped in the first place and if it was a legitimate stop. \u00a0Probable cause is a complicated subject and the source of great debate, but for now suffice it to say that the police need it or your case could be getting dismissed. \u00a0 This isn’t Arizona, we don’t just go around stopping people and shaking them down for their paperwork. \u00a0There has to be a legitimate reason for the initial police conduct before we ever get to the paperwork.<\/p>\n

The Necessity Defense<\/h2>\n

That brings me to today’s topic, the necessity defense. \u00a0Necessity is a classic legal concept and has been considered a valid defense to criminal activity since the days of common law. \u00a0Most states, including California have statutes and precedent under case law that establish and define the defense of necessity. \u00a0 The elements of the defense in California are spelled out in a jury instruction. \u00a0 The general concept under the law is that the defense of necessity, or choice of evils, traditionally covered the situation where physical forces beyond the actor’s control rendered illegal conduct the lesser of two evils. \u00a0 According to CALCRIM 3403<\/a>, the elements of a necessity defense are<\/p>\n

1-Breaking the law to prevent significant bodily harm or evil<\/p>\n

2-No adequate legal alternative<\/p>\n

3-Breaking the law did not create an even greater danger than the one you are trying to avoid<\/p>\n

4-You thought the act was necessary (subjective test)<\/p>\n

5-It was reasonable to believe the act was necessary (objective test)<\/p>\n

6-You did not substantially contribute to the emergency (can’t create you own necessity)<\/p>\n

What qualifies as a necessity of course varies based on who you ask. \u00a0 For some, it is a necessity that you get to work on time so speeding should be ok right? \u00a0Wrong, the court would probably rule that you should have just gotten your ass out of bed a little earlier to get there on time without breaking the law. \u00a0 I recently watched a guy try to present this defense in court on his own without a lawyer, and he was convinced he had it down. \u00a0He told the judge that it was “necessary” for him to violate VC 23123(a) and use his cell phone while driving because his car was breaking down. \u00a0 He even produced repair records showing just how bad of shape his car was in. \u00a0 \u00a0The judge listened, but ultimately found the guy guilty and said his defense didn’t hold water. \u00a0 For some reason the judge thought it would have been a better idea for that guy to pull over his broken down ride first, and then pick up the phone and call the mechanic. \u00a0Man traffic court judges can be strict. \u00a0 So what does qualify? \u00a0 Think of a situation where you have NO other option but to break some traffic laws. \u00a0Maybe you are being chased by the paparazzi, right Biebs? \u00a0 Or maybe you are having a medical emergency, that could fly.<\/p>\n

In one noteworthy case, the judge ruled that even though the defendant was driving in violation of multiple traffic statutes, his conduct was legal due to the defense of necessity. \u00a0In the words of the court,\u00a0“However, we share the apparent concern of Mr. Witkin that a driver, confronted with his or presumably a passenger’s medical emergency, should be permitted the opportunity to defend a reckless driving charge arising out of a journey to the hospital on the theory of ‘necessity.’ A citizen cannot be reasonably expected to engage in self-sacrifice and bleed to death at the altar of the Vehicle Code by observing the basic speed law and other rules of the road.” \u00a0\u00a0People v. Morris, (1986) 191 Cal.App.3d 8, 11<\/p>\n","protected":false},"excerpt":{"rendered":"

The Necessity Defense. \u00a0Is it ever legal to break traffic laws? As a California criminal defense lawyer, I hear this question all the time from potential clients. \u00a0 \u00a0I usually get a call on the 800 line at 800-797-8406 that starts with “I got a ticket but it’s a bullshit ticket…….”. \u00a0And then the good…<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_kad_post_transparent":"","_kad_post_title":"","_kad_post_layout":"","_kad_post_sidebar_id":"","_kad_post_content_style":"","_kad_post_vertical_padding":"","_kad_post_feature":"","_kad_post_feature_position":"","_kad_post_header":false,"_kad_post_footer":false,"footnotes":""},"categories":[19,5,20,76],"tags":[22,6,291,24,9,10,30,31,32],"class_list":["post-1897","post","type-post","status-publish","format-standard","hentry","category-california-criminal-law-blog","category-california-dui-law-blog","category-california-traffic-ticket-blog","category-know-your-rights-constitutional-law-blog","tag-criminal-defense","tag-criminal-law","tag-defenses","tag-gallagher","tag-lawyer","tag-traffic-court","tag-traffic-tickets","tag-trial","tag-vehicle-code"],"_links":{"self":[{"href":"https:\/\/www.markagallagher.com\/socaldefenselawyers\/wp-json\/wp\/v2\/posts\/1897","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.markagallagher.com\/socaldefenselawyers\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.markagallagher.com\/socaldefenselawyers\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.markagallagher.com\/socaldefenselawyers\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.markagallagher.com\/socaldefenselawyers\/wp-json\/wp\/v2\/comments?post=1897"}],"version-history":[{"count":1,"href":"https:\/\/www.markagallagher.com\/socaldefenselawyers\/wp-json\/wp\/v2\/posts\/1897\/revisions"}],"predecessor-version":[{"id":5556,"href":"https:\/\/www.markagallagher.com\/socaldefenselawyers\/wp-json\/wp\/v2\/posts\/1897\/revisions\/5556"}],"wp:attachment":[{"href":"https:\/\/www.markagallagher.com\/socaldefenselawyers\/wp-json\/wp\/v2\/media?parent=1897"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.markagallagher.com\/socaldefenselawyers\/wp-json\/wp\/v2\/categories?post=1897"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.markagallagher.com\/socaldefenselawyers\/wp-json\/wp\/v2\/tags?post=1897"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}