From Casetext: Smarter Legal Research

State v. Squires

Supreme Court of Vermont
Nov 7, 1986
147 Vt. 430 (Vt. 1986)

Summary

affirming trial court's denial of necessity instruction where defendant's intoxication created emergency

Summary of this case from State v. Myers

Opinion

No. 83-468

Opinion Filed November 7, 1986

1. Motor Vehicles — Operation Under the Influence — "Necessity" Defense

Essential element of "necessity" defense recognized in State v. Shotton, 142 Vt. 558, 561, 458 A.2d 1105, 1106 (1983), is that there must be situation of emergency arising without fault on part of actor concerned.

2. Criminal Law — Jury Instructions — Defense

Before defendant is entitled to jury instruction on a defense, defendant must establish prima facie case on each of the elements of defense asserted.

3. Motor Vehicles — Operation Under the Influence — "Necessity" Defense

Where defendant, accompanied by his nephew, traveled in his truck to tavern where he proceeded to consume enough alcohol to raise his blood alcohol level to 0.24%, which forced nephew to drive truck with which he was unfamiliar, thereby creating claimed emergency when nephew stalled truck in middle of well-traveled roadway and defendant took control of truck, necessity defense was not available to defendant as matter of law since his own conduct created emergency.

Appeal by defendant from conviction of DUI. District Court, Unit No. 3, Orleans Circuit, Wolchik, J., presiding. Affirmed.

Philip H. White, Orleans County State's Attorney, Newport, for Plaintiff-Appellee.

David W. Curtis, Defender General, and Henry Hinton, Appellate Defender, Montpelier, and David C. Sleigh, Public Defender, St. Johnsbury, for Defendant-Appellant.

Present: Allen, C.J., Hill, Peck and Gibson, JJ., and Barney, C.J. (Ret.), Specially Assigned


This is an appeal by defendant Roger Squires from a conviction, after jury trial, of operating a motor vehicle upon a public highway while under the influence of intoxicating liquor. 23 V.S.A. § 1201(a)(2). We affirm.

Defendant first argues that reversal is required because the prosecutor impermissibly elicited testimony about and commented upon what defendant did not say at the time of his arrest, thereby denying him a fair trial. We find it unnecessary to reach the merits of this claim because this case does not involve prohibited comment at trial on a defendant's post-arrest silence. Doyle v. Ohio, 426 U.S. 610, 613-16 (1976). The record clearly establishes that defendant voluntarily made statements to the police at the time of his arrest that were sufficiently inconsistent with his testimony at trial to justify inquiry and comment by the prosecution. See People v. Hinson, 70 Ill. App.3d 880, 886, 388 N.E.2d 899, 904 (1979); People v. Rehbein, 74 Ill.2d 435, 441-42, 386 N.E.2d 39, 42 (1978), cert. denied, 442 U.S. 919 (1979).

Defendant's primary defense at trial was the "necessity" defense recognized by this Court in State v. Shotton, 142 Vt. 558, 561, 458 A.2d 1105, 1106 (1983). Defendant's theory at trial was that it was necessary for him to take control of the vehicle after the original driver, his seventeen-year-old nephew, had stalled the vehicle in the middle of a well-travelled roadway while attempting to back out of the parking lot of a tavern. We stated in Shotton that an essential element of the necessity defense is that "there must be a situation of emergency arising without fault on the part of the actor concerned . . . ." Id. at 560, 458 A.2d at 1106. Furthermore, before a defendant is entitled to an instruction on a defense, a "defendant must establish a prima facie case on each of the elements of the defense asserted." State v. Knapp, 147 Vt. 56, 59, 509 A.2d 1010, 1011 (1986).

Defendant has failed to establish a prima facie case on the "without fault" element of the necessity defense because the record establishes that the defendant's own conduct created the emergency. The record indicates that defendant, accompanied by his nephew, traveled in his truck to a tavern where he proceeded to consume enough alcohol to raise his blood alcohol level to 0.24%. Due to defendant's level of intoxication, the nephew, who was unfamiliar with the defendant's truck, was forced to drive the truck, thereby creating the claimed emergency. Under these circumstances, the necessity defense was not available to the defendant as a matter of law.

Affirmed.


Summaries of

State v. Squires

Supreme Court of Vermont
Nov 7, 1986
147 Vt. 430 (Vt. 1986)

affirming trial court's denial of necessity instruction where defendant's intoxication created emergency

Summary of this case from State v. Myers
Case details for

State v. Squires

Case Details

Full title:State of Vermont v. Roger Squires

Court:Supreme Court of Vermont

Date published: Nov 7, 1986

Citations

147 Vt. 430 (Vt. 1986)
519 A.2d 1154

Citing Cases

State v. Thayer

The issue of whether the trial court properly excluded the necessity defense is a pure question of law. See…

State v. Riedl

0) (emergency defense, speeding charge); People v. Weiser, 789 P.2d 454, 455-56 (Colo.App.1989) (choice of…