## Facts

- Terry Toops, Warren Cripe, and Ed Raisor spent late evening drinking beer at Toops’s home.
- Around 3:00 a.m., the three drove toward a store in Toops’s car; because Toops was intoxicated, he agreed Cripe would drive, with Toops in the front passenger seat and Raisor in the back.
- A sheriff’s deputy and town marshal observed Toops leaning out the car window and turned to investigate.
- Upon seeing the patrol car turn, Cripe panicked (he was a minor who had been drinking), released the steering wheel, and jumped into the back seat.
- The car began to veer out of its lane and into oncoming traffic before veering back.
- Toops moved into the driver’s seat and brought the vehicle under control; when officers caught up, Toops was behind the wheel and the other two occupants were in the back seat.
- Toops submitted to a breath test showing a BAC of 0.21%.
- A jury convicted Toops of four alcohol-related driving offenses, including operating while intoxicated and operating with BAC of 0.10% or more, each charged in both basic and prior-offense forms.
- At trial, Toops requested a jury instruction on the defense of necessity; the trial court refused, stating necessity was not recognized in Indiana.

## Issues

1. Whether Indiana recognizes the common-law defense of necessity in a prosecution for operating a vehicle while intoxicated.
2. Whether the evidence was sufficient to require a jury instruction on necessity where the defendant claimed he drove only to prevent imminent harm from an out-of-control vehicle.
3. Whether refusal to give the requested necessity instruction required reversal of the convictions.

## Decision

- The Court of Appeals reversed and remanded for a new trial.
- The court held necessity is recognized in Indiana as a common-law justification defense.
- The court held there was sufficient evidence from which a jury could find the elements of necessity, so the trial court erred by refusing any necessity instruction.
- The error warranted reversal because it removed a material defense theory from the jury’s consideration.

## Legal Principles

- Necessity is a common-law justification defense in Indiana unless abrogated by statute.
- Necessity may justify otherwise unlawful conduct when undertaken to prevent a greater harm.
- A necessity claim generally requires evidence of: (1) an emergency presenting clear and imminent danger, (2) action taken to avoid a greater harm, (3) no reasonable legal alternative, and (4) proportionality between the harm caused and the harm avoided.
- A defendant is entitled to an instruction on a legally recognized defense when there is some evidence supporting it; credibility and weight are for the jury.
- The necessity defense may be available in an OWI prosecution in extraordinary circumstances; the court does not decide the defense on appeal when evidence would allow a jury to decide it.

## Conclusion

Indiana recognizes the common-law necessity defense, and where evidence supports that an intoxicated defendant briefly drove to regain control of a vehicle in immediate danger of causing harm, the jury must be instructed on necessity; refusal to do so is reversible error requiring a new trial.


Toops v. State, 643 N.E.2d 387 (Ind. Ct. App. 1994)