STATE OF NEW JERSEY v. ANN MARIE LOVETT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3211-05T13211-05T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANN MARIE LOVETT,

Defendant-Appellant.

________________________________________________________________

 

Argued November 1, 2006 - Decided December 19, 2006

Before Judges Wefing, Parker and Yannotti.

On appeal from the Superior Court of New

Jersey, Law Division, Sussex County,

Municipal Appeal No. 48-09-05.

John D. Williams argued the cause for appellant

(Gruber, Colabella, Liuzza, Kutyla & Ullmann,

attorneys; Mr. Williams, on the brief).

Robin M. Lawrie, Assistant Prosecutor, argued

the cause for respondent (David J. Weaver,

Sussex County Prosecutor, attorney; Ms. Lawrie,

of counsel and on the brief).

PER CURIAM

Defendant Ann Marie Lovett pled guilty to driving while intoxicated (DWI), N.J.S.A. 39:4-50, after the municipal court rejected her defense of necessity. On February 17, 2006, the Law
Division similarly rejected the defense of necessity after de novo review. On February 27, 2006, the Law Division entered a judgment of conviction, sentencing defendant to a seven month suspension of her driver's license, a $300 fine and the usual additional penalties. The sentence was stayed pending appeal. We affirm.

The following is a summary of the pertinent facts to which the parties stipulated. Prior to February 19, 2005, defendant had been physically abused by her husband. On February 19, 2005, she and her husband had both been drinking for several hours when he threatened to harm her physically and to "finish her" this time. She claimed that she feared for her life and fled from the house to the garage intending to spend the night locked in her car. She had consumed six beers by this time and did not intend to drive. She did not take her driver's license or cell phone with her. Because her husband followed her, however, she drove out of the garage onto the public roads. She claimed she did not initially know what to do or where to go, so she drove to the State Police barracks in Augusta, approximately three miles from her home. Defendant drank part of the seventh beer of the evening while she was sitting in her car in the barracks' parking lot. She went into the barracks and told the trooper on duty that he should arrest her because she was intoxicated.

The municipal court rejected the necessity defense on the following grounds:

What I find compelling in this case is that the defendant stayed in her home all that evening and consumed all these beers with her husband, [whom] she was concerned about. It doesn't seem like a rational thing to do, to sit at home[,] [i]f you're concerned that . . . [your] husband brutalized you one time before, now you're sitting there with him again consuming beers. [I]f you were concerned, you simply would have [gone] to the phone or you simply would have gotten your cell phone and brought it with you.

Instead the defendant decided to retreat to her car, drive that car to the police station and consume[] more alcohol. I'm not satisfied that the defense of necessity exists here, although I can understand the concern. There were many other things that the defendant could have done to . . . protect herself. She could have [gone] right next door . . .

. . . .

to the neighbor's house, she could have [run] out into the street and flagged down another vehicle. Many other actions . . . could have [been] taken. She knew that she had consumed . . . excessive [amounts of] alcohol. She decided to continue to drink more alcohol at the police station.

I'm not satisfied that necessity exists in this matter.

Defendant then pled guilty to the DWI charge.

In her appeal to the Law Division, defendant again argued that the defense of necessity entitled her to a judgment of acquittal. "The common-law defense of 'necessity' is often referred to as the 'choice-of-evils' defense." State v. Tate, 102 N.J. 64, 73 (1986) (quoting W. Lafave & A. Scott, Handbook on Criminal Law, 382 (1972)). "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." Id. at 73 (citing Arnolds & Garland, The Defense of Necessity in Criminal Law: The Right to Choose the Lesser Evil, 65 J. Crim. L. & [Criminology] 289 (1974)). In State v. Romano, 355 N.J. Super. 21, 29 (App. Div. 2002), we noted that

[t]he "necessity" defense is based on public policy. Essentially, "it reflects a determination that if, in defining the offense, the legislature had foreseen the circumstances faced by the defendant, it would have created an exception." (citation omitted) Thus, "the defense is available at common law only when the legislature has not foreseen the circumstances encountered by a defendant."

[Ibid. (quoting Tate, supra, 102 N.J. at 73-74).]

Defendant argues that her case is factually similar to Romano. In Romano, the defendant was attacked by a group of assailants in the parking lot of a bar he was leaving. Romano, supra, 355 N.J. Super. at 24. The arresting officer saw defendant driving without headlights approximately 350 yards from the parking lot. Ibid. The officer testified that the defendant's face was "covered in blood," he was "bleeding profusely from [his] nose" and he "was physically shaken . . . [and] frightened." Ibid. Defendant told the officer that he had been attacked and, although officers were dispatched to the parking lot, they did not find the defendant's assailants. Id. at 25. The defendant was treated at the hospital for "a broken nose, lacerations, bruises and cuts." Ibid. We held that under the circumstances, defendant had established the defense of necessity entitling him to a judgment of acquittal. Id. at 36.

Here, the Law Division judge correctly stated the elements of the necessity defense:

There must be an emergency situation arising without fault on the part of the actor concerned. The emergency must be so imminent and compelling as to raise a reasonable expectation of harm. The emergency must present no reasonable opportunity to avoid the injury without doing the criminal act; in this context, the driving while intoxicated. And the injury impending from the emergency must [be] of . . . sufficient seriousness to out[weigh] the criminal wrong.

The judge distinguished this case from Romano as follows: (1) here, defendant was not without fault in that she acknowledged and admitted that she was drinking with her husband who had previously abused her physically; (2) defendant's "flight from the dangerous situation . . . extended further than the [Romano] scenario;" (3) defendant consumed the seventh beer of the evening while she was in the parking lot of the State Police barracks; and (4) defendant created a risk in driving three miles to the State Police barracks that outweighed the danger she faced after she had escaped her husband. In other words, the danger was no longer imminent once she was out of the garage.

In this appeal, defendant argues:

POINT ONE

THE LOWER COURT ERRED AS A MATTER OF LAW IN NOT CONCLUDING THAT, ON THE FACTS AS STIPULATED TO BY THE PARTIES IN THIS MATTER, THE STATE HAD FAILED TO DISPROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT HAD ESTABLISHED THE DEFENSE OF NECESSITY

Defendant correctly argues that once she has presented "some evidence of the defense of necessity, the burden is upon the State to disprove the defense beyond a reasonable doubt." While the burden is on the State to disprove the defense beyond a reasonable doubt, Romano, supra, 355 N.J. Super. at 35-36, we are satisfied that in relying on the stipulated facts and the reasonable inferences drawn therefrom, the prosecutor proved beyond a reasonable doubt that defendant did not establish the third element of the defense.

We disagree with the municipal court and the Law Division that defendant herself bears responsibility for her situation because she engaged in a lengthy period of drinking with her husband who had previous abused her and of whom she claimed to be afraid. We cannot determine from the stipulated facts whether alcohol played any role in the prior incident of domestic violence; whether the argument leading to defendant's flight began before or while they were drinking; or if defendant's husband erupted spontaneously while in the drunken state. In short, the stipulated facts do not demonstrate beyond a reasonable doubt that defendant was at fault in causing the emergent situation.

The inference may be drawn from the stipulated facts, however, that defendant had opportunities to seek refuge closer to home, rather than drive three miles to the State Police barracks. As we noted in Romano, "[i]n a DWI prosecution, the distance a driver traveled might be relevant to the defense of necessity if the driver had escaped the harm and continued to drive." Romano, supra, 355 N.J. Super. at 24 n.1.

Defendant further argues that the court erred in considering "the defense of necessity as if it is context specific." We cannot conceive of it being otherwise. Indeed, the four elements of the necessity defense focus specifically on the context in which it arises. Taking all of the stipulated facts as true and the reasonable inferences drawn therefrom, we are satisfied that there were other opportunities for defendant to avoid injury without driving three miles to the State Police barracks while intoxicated and then continuing to drink in the parking lot before presenting herself to the trooper on duty. As the municipal court judge noted, defendant could have gone next door or she could have gone down the street. The stipulated facts include inferences that there were alternatives available to defendant other than driving three miles to the State Police barracks. The defense of necessity applies when there was "no realistic alternative but to violate the DWI statute." Romano, supra, 355 N.J. Super. at 35.

We are satisfied that Judge Thomas Critchley properly rejected the defense of necessity and affirmed defendant's conviction of driving while intoxicated.

Affirmed.

 

(continued)

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A-3211-05T1

December 19, 2006