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Using Affirmative Defenses to Protest a Drunk Driving Charge

affirmative defense drunk driving.jpgA Wisconsin man has recently blamed his 10th DUI on eating beer-battered fish. 75-year-old John Przbyla had beer battered fish for lunch before being detained at a traffic stop for erratic driving. Deputies smelled alcohol on his breath and asked if he had been drinking. Przbyla replied that his breath smelled of alcohol because he had just consumed beer-battered fish.

The deputy ordered Przbyla to take a field sobriety test which he failed. Przbyla also took at breathalyzer test. His blood alcohol content (BAC) was .062%. Though his BAC was below the legal limit, Przbyla was arrested due to a driving ban he violated. He had previously been ordered to not operate a motor vehicle with a BAC above .02%. Przbyla was formally charged with a DUI, driving with a revoked license, and possessing an open container in a motor vehicle.

Przbyla's story is interesting in the fact that it sheds light on the affirmative defenses that can be raised to combat a drunk driving charge. Affirmative defenses to drunk driving charges usually exist in rare circumstances. Attorneys typically defend against a drunk driving charge by attacking the arresting officer's observations during the traffic stop, or by challenging the authenticity of evidence, such as roadside breathalyzer results.

The following affirmative defenses may possibly be used to contest an Ann Arbor drunk driving charge:

1. Necessity

The defense of necessity occurs when a person is compelled or obliged to do something in order to avoid a greater harm to himself/herself, or another person. There must be no other, less harmful way to avoid the threatened danger.

Example: Joe and Sue go camping in a remote location with no radio signal. They both consume a few beers. Joe starts having an allergic reaction and starts struggling to breathe. Sue is unable to call an ambulance because she has no cell phone signal. Sue decides to drive Joe to town for assistance. While driving into town, Sue is pulled over and charged with drunk driving. Sue may be able to use the defense of necessity to rebut the charge.

2. Duress

The defense of duress allows the court to dismiss a criminal charge of drunk driving if a person can prove that someone else made him/her do it under the threat of bodily harm. The defense of duress is rarely used as a drunk driving affirmative defense.

3. Involuntary Intoxication

Involuntary intoxication means that a defendant took a substance against his/her will, without his/her knowledge, and the act of intoxication from the substance caused the defendant to not know that his or her conduct was wrong. Przbyla tried to argue that he was involuntarily intoxicated by the beer-battered fish. However, the prosecutor could challenge his assertion if he was aware of the intoxicating substance he consumed prior to getting behind the wheel. Given the .062% BAC and the likelihood the cooking process caused the beer to dissipate somewhat, it is also more likely true that Przbyla consumed alcoholic beverages separately from his consumption of the beer-battered fish.

There must be sufficient evidence and legal support to successfully use one of the affirmative defenses mentioned above. A skilled drunk driving defense attorney will review your case and provide you with legal guidance on what possible defenses can be raised to rebut the drunk driving charge.

Contact Ann Arbor DUI attorney Stacey Washington for more information about drunk driving representation. She provides representation to residents of Ann Arbor, Ypsilanti, Saline, Chelsea, Manchester, Dexter, and Pittsfield Township.


Man blames 10th DUI on eating beer-battered fish

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