FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 7 - CHAPTER 105
Go to Volume 7 Table of Contents - Go to Chapter 105 Table of Contents

105.3 Driving And Traffic Violations

    105.3.3 Driving And Traffic Violations: Defenses And Defense Theories

    105.3.3.1 Driving With Suspended License: Duress/Coercion Or Necessity/Choice Of Evils As Defense
    105.3.3.2 Speeding: Duress/Coercion Or Necessity/Choice Of Evils Necessity As Defense
    105.3.3.3 Speeding: Unforeseen Occurrence Defense
    105.3.3.4 Speeding: Justification As Defense Theory
    105.3.3.5 Driving And Traffic Violations: Additional Defenses And Defense Theories

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 7 - CHAPTER 105

    See FORECITE National™ 254.2 [Necessity, Emergency, Choice Of Evils, Competing Harms].

    See FORECITE National™ 89.4.4 [Duress As Defense To Drunk Driving].

    See FORECITE National™ 89.4.6 [Necessity As Defense To Drunk Driving].

    See FORECITE National™ 105.3.3.2 [Speeding: Duress/Coercion Or Necessity/Choice Of Evils Necessity As Defense].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 7 - CHAPTER 105

RATIONALE: Even though speeding is considered a "strict liability" offense and has no culpable state of mind, the public interest in efficient enforcement of the traffic law must be weighed against other public interests which are protected by possible defenses. Hence, if the speeding violation was to prevent a greater harm a necessity defense may be appropriate.

POINTS AND AUTHORITIES: The defense of necessity has been applied to speeding. For example, in State v. Brown (WI 1982) 318 NW2d 370, the defendant contended that the traffic officer operated his own vehicle in such an erratic and harassing manner that the defendant felt compelled to increase his own speed in order to get away from the officer. The Wisconsin Supreme Court held that "[w]here the violation of the speeding law is caused by the state itself through the actions of a law enforcement officer,...the public interest in allowing the violator to claim a defense outweighs the public interest in ease of prosecution." (Brown, 318 NW2d at 376; see also State v. Messler (CT 1989) 562 A2d 1138 [trial court erred in not considering defendant's argument that he was entitled to assert necessity defense justification for his speeding up to over 70 miles an hour in order to pass group of cars and get into right hand lane, so as to get out of way of police car which was behind him and chasing another vehicle]; Cooper v. District of Columbia (DC 1962) 183 A2d 557 [in speeding prosecution, where defense was justifiable fear brought about by conduct of officer in following vehicle, evidence raised reasonable doubt as to defendant's guilt]; People v. Cataldo (NY 1970) 316 NYS2d 873, 876 [defendant traveled at speed of 67 miles an hour through 50 mile-an-hour zone in order to pass around and avoid collision with rear of automobile which was rapidly slowing].)

    See also FORECITE National™ 105.3.3.3 [Speeding: Unforeseen Occurrence Defense].

    See also FORECITE National™ 105.3.3.4 [Speeding: Justification As Defense Theory].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 7 - CHAPTER 105

PRACTICE NOTE: It may be a defense to a charge of speeding if the act of speeding was the result of an unforeseen circumstance which was not caused by the defendant and could not be prevented by the defendant. (See State v. Baker (KS 1977) 571 P2d 65, 67-68.)

    See also FORECITE National™ 105.3.3.2 [Speeding: Duress/Coercion Or Necessity/Choice Of Evils Necessity As Defense].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 7 - CHAPTER 105

PRACTICE NOTE: In State v. Brown (WI 1982) 318 NW2d 370, the defendant contended that the traffic officer operated his own vehicle in such an erratic and harassing manner that the defendant felt compelled to increase his own speed in order to get away from the officer. The Wisconsin Supreme Court held that "[w]here the violation of the speeding law is caused by the state itself through the actions of a law enforcement officer,...the public interest in allowing the violator to claim a defense outweighs the public interest in ease of prosecution." (Brown, 318 NW2d 370, 376.) Hence, even though speeding is considered a "strict liability" offense and has no culpable state of mind, the public interest in efficient enforcement of the traffic law must be weighed against other public interests which are protected by possible defenses.

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 7 - CHAPTER 105

PRACTICE NOTE: The defenses and defense theories discussed in this chapter are offered to provide ideas which may be helpful in developing a defense strategy and are not intended to be a complete checklist. Depending on the jurisdiction and the factual circumstances, other theories may be available. (See generally FORECITE National™ Volume 11: Affirmative Defenses And Defense Theories (Ch. 250-264).) For example, in any given case defensive theories may be available as to one or more of the basic elements of criminal liability. (See generally FORECITE National™ Volume 5: Basic Elements Of A Criminal Allegation And Defenses Thereto (Ch. 43-62).)