Background
Jackson Rathod was convicted by a jury of first-offense operating while intoxicated after an officer found him asleep in the driver’s seat of his running vehicle at about 4:00 a.m. The officer observed signs of intoxication, including an odor of alcohol, bloodshot and glassy eyes, poor performance on field sobriety tests, and apparent vomit in and around the vehicle.
Rathod testified that he had left a work party after drinking, vomited while walking to his car, and sat inside because he did not want to return to the nearby house smelling of vomit. He said he was inadequately dressed for the cold, turned on the car to warm himself, and then fell asleep. He requested a necessity-defense instruction, but the trial court declined to give it.
The Court’s Holding
The Wisconsin Court of Appeals affirmed. It held that the trial court correctly refused to instruct the jury on necessity because the evidence did not support the requirement that operating the vehicle was Rathod’s only means of preventing imminent death or great bodily harm.
Rathod’s own testimony established that he knew of an available alternative: returning to his colleague’s house, which was no more than a two-minute walk away. Avoiding embarrassment from returning while smelling of vomit may have made that option less desirable, the court held, but it did not make starting the vehicle the only means of avoiding harm from the cold.
Key Takeaways
- A necessity instruction requires evidence that the unlawful act was the only available means of preventing imminent death, great bodily harm, or public disaster.
- The defense does not apply merely because the unlawful option was safer, easier, or less embarrassing than available alternatives.
- Because Rathod knew he could return to the nearby house for warmth, the evidence did not warrant submitting necessity to the jury.
Why It Matters
The decision underscores the narrow scope of Wisconsin’s necessity defense in OWI cases. A defendant must present evidence of no viable lawful alternative, not simply evidence that the chosen course was preferable under the circumstances.