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Driving drunk to evade deadly assailants is now a defense to prosecution in New Jersey, but how often does a drunk flee from demons not of his own creation? That’s why defense lawyers say the New Jersey Appellate Division’s Nov. 11 reversal of a DWI conviction under the common-law doctrine of necessity will have narrow application. They say the court’s requirement that the defendant have no role in creating the emergent situation will keep in check invention of other excuses for driving while intoxicated. “The fortunate thing is they recognized the law of necessity,” says Robert DePersia, a Haddonfield, N.J., solo practitioner who represents drunken-driving defendants. “The unfortunate thing is it will probably never benefit a defense attorney, because how often do you have a fact pattern such as this?” The unusual facts, as well as the result, propelled the ruling in State v. Romano onto front pages and radio talk shows with the usual blaring of anti-drunken-driving oratory. But the case presented facts that were, in words quoted by the court, “so bizarre and remote from the public policy underlying the law that even a court as committed as this one to the strict enforcement of the drunk-driving statutes can pause to make certain that no injustice has been done.” Joseph Romano testified, and the prosecution did not contest, that in December 1999, three men who claimed he owed them money brutally beat him outside a Clifton restaurant, where he had spent the evening drinking. Romano managed to break free, get into his car and lock the door, but the men rocked and kicked the vehicle and said they would kill him. He drove away but got only a few hundred feet before a policeman pulled him over, noticing he had no headlights on. The smell of liquor led to a blood test that showed a 0.16 blood-alcohol level. Romano was convicted of DWI in Clifton Municipal Court notwithstanding his lawyer Timothy Kane’s assertion of the common-law necessity defense. Kane reasserted the defense in a de novo appeal to the Superior Court Law Division. Passaic County Judge Ronald Sokalski interpreted it to be the statutory defense of N.J.S.A. 2C:3-2(a), which states, “Conduct which would otherwise be an offense is justifiable by reason of necessity to the extent permitted by law and as to which neither the code nor other statutory law defining the offense provides exceptions or defenses dealing with the specific situation involved and a legislative purpose to exclude the justification claimed does not otherwise plainly appear.” Noting the absence of a factfinding record, Sokalski found that Romano had failed to carry his burden of proof by preponderance of the evidence. But the appeals judges ruled that because DWI is not an offense under the Criminal Code, the common-law defense of necessity — also known as the “choice-of-evils” defense — must be applied. Under that rubric, conduct that would otherwise be criminal is justified if the evil avoided is greater than that sought to be avoided by the law defining the offense committed. The New Jersey Supreme Court recognized the defense in State v. Tate, 102 N.J. 64 (1986), establishing a four-prong test: a situation arising without fault on part of the actor, an emergency so imminent and compelling as to raise a reasonable expectation of harm, no reasonable opportunity to avoid the injury without doing the criminal act, and an impending injury serious enough to outmeasure the criminal wrong. The necessity defense, the court in Romano noted, reflects a determination that if the Legislature had foreseen the circumstances faced by the defendant, it would have created an exception to the proscribed offense. “We are satisfied that the Legislature did not weigh the competing value of driving while intoxicated to escape a brutal, and possibly deadly attack, against the values served by ridding the roads of drunk drivers,” wrote Judge Dennis Braithwaite, joined by Judges James Petrella and Lorraine Parker. The panel based its ruling in part on Justice Gary Stein’s dissent from the Supreme Court’s 4-3 ruling in State v. Fogarty, 128 N.J. 59 (1992). The majority there upheld a drunken driving charge for a man whom police ordered to drive away from the scene of an altercation and who promptly backed into a police car. But unlike Fogarty, who should have advised the police officer that he was drunk and sought an alternative to driving, Romano did not contribute to the circumstances giving rise to his drunken driving, Braithwaite wrote. Furthermore, Fogarty was only a bystander to a fight, while Romano was facing actual, physical harm. The assistant Passaic County prosecutor who represented the state, Michelle Katich, declines to comment on the ruling except to say that her office and the state Attorney General’s Office are studying it to decide whether to appeal to the Supreme Court. Romano’s lawyer Kane says he believes the ruling will encourage municipal courts to give more consideration than before to common-law defenses to drunken driving. “I don’t think it really opens the door to a lot of not-guilty findings,” says Kane, of Abdy, Kane & Nardella in Totowa. “I think it will alert some of the courts that these defenses are available. But I also think the Appellate Division was careful about indicating that this case has unique facts which would result in the decision that was issued.” Peter Lederman, a former chairman of the State Bar Association’s municipal court practice committee, says Romano is evidence that New Jersey courts are becoming more flexible in drunken driving cases. “What the case shows is the courts are more willing than ever to consider cases on their merits and to not reflexively find for the state because it’s DWI,” says Lederman of Freehold’s Lomurro, Davison, Eastman & Munoz. “The fact that it’s DWI doesn’t mean the state should win every case and that every defense raised should be explained away as a pretextual defense.”

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