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Click here for the full text of this decision FACTS: Jerry Moore called his wife on a December day in 2001 and asked her to come pick him up at his sister’s mobile home. When the wife arrived, she saw Moore and four others fighting in the street. She saw guns flash and noticed some of the participants had scissors. Someone fired shots, and Moore got into his wife’s truck and drove off. Police arrived on the scene and as the remaining parties were interviewed, police saw a truck driving at a high rate of speed back through the mobile home park. Moore’s wife identified it as her truck, with Moore driving. Moore arrived on the scene, where, based on a strong smell of alcohol and Moore’s failure of several field sobriety tests, police arrested Moore for DWI. Moore later admitted to drinking a pint of brandy earlier. At an administrative hearing to suspend Moore’s license, the administrative law judge found there had been probable cause to stop and arrest Moore. However, the ALJ also found that Moore proved his affirmative defense because Moore called his wife, he was being threatened by a man with a gun when she arrived, and he fled, only returning “when police arrived and it was safe for him to do so.” The state appeals. HOLDING: Reversed and remanded. “Necessity may justify criminal conduct if: (1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm, (2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct, and (3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.” The court decides that necessity in this case is not measured by when Moore initially drove away from the confrontation. In order to successfully raise the defense in this case, Moore would have to present a reasonable belief that in order to avoid imminent harm, he had to drive back across the mobile home park to the scene of the assault. At the time of his arrest, Moore had driven back to the scene after police arrived and it was safe for him to come back. “Because the administrative law judge determined that, at the time of his arrest, Moore drove his truck not to avoid imminent harm, but instead to return to the scene when”it was safe for him to do so,’ we hold that, as a matter of law, the defense of necessity does not apply in this case.” OPINION: Bland, J.; Taft, Keyes and Bland, JJ. DISSENT: Keyes, J. The dissent finds the majority opinion relied too heavily on the ALJ’s one phrase about driving back when “it was safe to do so.” The dissent notes that there were no witnesses at the hearing, no description of how long it had been since Moore first got into his car until he was arrested, and no information as to how recently the policy had secured the situation or how far Moore had traveled.

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