Is It Still a DUI if I was Driving to the Hospital?

emergency room

Photo: Taber Andrew Bain on Flickr

Picture this: You’re out in the middle of nowhere with some friends. You’ve had a few drinks, and you know you probably shouldn’t drive. But suddenly a friends falls and gets seriously injured. You have no cell phone reception and no one sober is around to drive your friend to the emergency room.

What does the law say you should do? Is it illegal to drive while intoxicated to get your friend the help he needs?

It might seem like there should be a simple yes or no answer, but it’s actually more complicated than that. This post will explain why.

Does Your Mental State Matter?

A DUII in the State of Oregon, is a “strict liability” crime. That means your “mental state” does not affect whether you can be found guilty. In other words, the state doesn’t have to prove you had a “culpable mental state” at the time of the crime. They just have to prove you did it.

A culpable mental state means you acted intentionally, knowingly, recklessly, or with criminal negligence.

It doesn’t matter what you were thinking or doing at the time or what your intention was — you can still be found guilty of a DUII.

What if You’re Driving to the Hospital?


What if you’re driving while intoxicated to save someone’s life? Or your own life?

In Oregon, the applicable law is § 161.205, which refers to the “use of physical force generally.” In the eyes of the law, a DUII qualifies as a use of physical force. The use of physical force is legally justifiable under any of the following circumstances:

  1. If you’re a parent, guardian, or other person entrusted with the care of a minor or incompetent person, you may use reasonable physical force to maintain discipline or to promote the welfare of that person.

  2. You may use reasonable force to prevent someone from committing suicide if you have reasonable belief they are about to do so.

  3. You may use physical force in self-defense or in defending a third person or property.

If all that is true, then there must be situations where driving under the influence of intoxicants is justifiable, right?

Is DUII Ever Legal?

Technically, no, but the above makes it clear that you can defend yourself against the charge by invoking a “choice of evils” defense (§ 161.200). The law says justifiable use of force (and thus driving under the influence) is justifiable and not criminal when it’s the lesser of two evils. Specifically, you may be considered justified in driving while impaired when:

  1. It is necessary as an emergency measure to avoid an imminent injury, and

  2. The threatened injury is serious enough that a reasonable person would believe the desirability and urgency of avoiding it clearly outweigh the desirability and urgency of avoiding the injury DUII could cause.

Has That Defense Ever Succeeded?

Has someone ever actually proven their DUII was justified?

Well, that’s the hard part. The burden of proof is on the defendant. That means you will be found guilty of a DUII unless you are able to prove your actions were justified.

To assert a choice of evils defense, you would need to prove:

  1. Your conduct was necessary to avoid a threatened injury,

  2. The threatened injury was imminent, and

  3. It was reasonable for you to believe the threatened injury was greater than the potential injury of your illegal actions.

road driving duii

Choice of Evils in Court

One of the best examples of a choice of evils defense was STATE of Oregon v. Michael Wade HALEY in 1983. Mr. Haley was attempted to assert a choice of evils defense to appeal his conviction for driving while suspended and driving under the influence.

He said he was driving his father, who had broken an ankle, to the hospital when the police stopped him.

Mr. Haley was burdened with proving his actions were necessary to avoid an imminent injury. To do that, he needed to prove the urgency of the circumstances made it necessary to drive his father to the hospital without a license and while intoxicated.

That’s exactly where his defense fell short. The court determined the “defendant offered no explanation for his failure to secure an alternate form of transportation for his father.”

So Mr. Haley was not able to prove a choice of evils. In fact, a choice of evils defense is extremely difficult to assert successfully.

Is a Choice of Evil’s Defense Your Best Option?

In my experience, a “choice of evils” defense has little or no chance of succeeding without proof of an absolute necessity of driving, with no absolutely no other viable alternatives available, and even then, the burden is on the defendant to prove the defense rather than the state to prove guilt beyond a reasonable doubt.

Fortunately, a choice of evils defense is not your only option. If you’ve been accused of driving under the influence in Oregon, I can help.

Get in touch with me for a free consultation.