The threshold for necessity emergency justification in drunk driving

The defendant had been subjected to violence by her former partner and fled the scene by driving away. Her blood alcohol level was measured at 1.36‰. The drive occurred through a densely populated area on a Sunday morning, covering a distance of 1.2 kilometers. Shortly after, a police vehicle began following her, although she did not notice it until she arrived home. She was convicted of driving under the influence in the District Court by a divided bench, but was acquitted in the Court of Appeal, also by dissent, on the grounds of necessity, based on a decisive minority opinion.

An emergency situation existed at the time she fled the residence. The central issue was whether she had any reasonable alternatives to driving away. A majority of three justices concluded that she did not, and that the conditions for invoking necessity were met for the initial part of the drive. However, the majority found that the conditions were no longer met during the latter part of the drive. Once the police vehicle began following her, the emergency had ceased, and she ought to have noticed the police presence during the drive. While necessity was exceeded at that point, the Court found this understandable and therefore deferred sentencing under section 60 of the Penal Code. Additionally, she was disqualified from driving for a period of six months, which had already been served due to a temporary suspension of her license.

A minority of two justices held that a reasonable alternative existed, namely that she could have locked herself in the car and called for help instead of driving. Accordingly, they found the entire drive to be unlawful. While the mitigating circumstances were acknowledged, they did not carry the same weight as in the majority’s assessment.

This judgment is significant for the interpretation of "necessity", particularly in cases where the individual invoking necessity has been subjected to violence.

Read the judgment from the Supreme Court (Norwegian only) (PDF)

Area of law: Criminal law, necessity, section 17 of the Penal Code

Key paragraphs: 18–19, 28–29, 32–33, 36, 44, 46

Justices: Falkanger, Noer, Hellerslia, Stenvik, Vang