The State's evidence tended to show the following. In the
early evening hours on 3 September 2002, Joe Austin and a friend
were standing next to Austin's house when they heard "something
coming off the hill real fast" and saw a white Toyota pickup truck
barreling down a steep hill behind Austin's house. The Toyota hit
an old truck cab that Austin had parked on the hill and another
vehicle parked in front of the house and came to rest in Austin's
driveway. Austin ran to the truck and saw defendant lying on top
of Benny Maney on the floorboard with defendant on the driver's
side and Maney on the passenger side. Austin testified that the
truck was still running, and his friend reached in and turned it
off. Austin ran to his house and told his wife to call an
ambulance. About fifteen minutes later, before the ambulance
arrived, defendant got out of the truck and started walking toward
When Trooper Rocky Dietz of the North Carolina Highway Patrol
arrived, Austin told him that defendant had left to walk to his
house. Dietz went to defendant's house, where defendant answered
the door. Dietz noticed that defendant had a strong odor of
alcohol coming from his person. Dietz asked defendant if he had
been in a motor vehicle accident, and defendant replied that he had
not, but agreed to accompany Dietz to the accident scene. Dietz
placed defendant in his patrol car and administered Miranda
At the accident scene, Austin identified defendant as the
person he had seen in the driver's seat of the truck, and defendantapologized to Austin for what had happened. Dietz placed defendant
under arrest and transported him to the Yancey County Sheriff's
Department, where he informed defendant of his Intoxilyzer rights
and administered an Intoxilyzer test. The test indicated that
defendant had a breath alcohol concentration of .26.
Toward the end of the State's case-in-chief, the trial court
admitted into evidence State's Exhibit 6, consisting of defendant's
record of convictions for violations of motor vehicle laws, a
notice of an alcohol-related suspension of defendant's North
Carolina driver's license, and defendant's DMV driver's record.
Following admission of this evidence, defendant was arraigned
outside the presence of the jury on the charge of habitual driving
while impaired. Defendant then admitted having three prior
convictions involving impaired driving within the past seven years
and confirmed that he had signed a stipulation that his license was
revoked on the date of the accident. The signed stipulation was
admitted into evidence as State's Exhibit 7. At that point, the
Defendant offered evidence that he began drinking at
approximately 1:00 p.m. on 3 September 2002 and drank six or seven
beers over the course of the afternoon. His friend Benny Maney
picked him up in a white Toyota pickup truck to take him to Maney's
house for supper. Denise Sturgill, the fiancée of defendant's
brother, testified that she saw defendant get into the passenger
side of Maney's truck. According to defendant, he was still riding
as a passenger when the two men stopped on the side of the road to
examine a dead tree and decide how best to cut it down for wood. Maney's truck was parked on the unpaved shoulder of the road,
facing traffic. Defendant looked back and saw that the truck was
rolling. He ran to the truck, jumped in the passenger door, slid
over to the driver's side, and unsuccessfully tried to stop the
truck by pumping the brakes. Maney followed through the passenger
side and pulled the emergency brake, but the truck just rolled
faster. Defendant testified that the truck was traveling on the
wrong side of the road with defendant attempting to steer although
the truck's power steering was not working. As they approached a
sharp curve, defendant saw an oncoming car and steered the truck
across the road to the opposite bank. According to defendant, the
truck went over an embankment, then hit Austin's truck cab and a
parked car and headed straight towards Austin's house. Defendant
testified that he "tried to do the best [he] could to keep from
hitting that house below [them]." The truck came to rest in
Austin's driveway. Defendant testified that had he not jumped in
the truck and ultimately steered it down the driveway, it would
"have went right through [the] house."
Defendant "busted [his] head over the windshield coming down
through there" and "was kind of addled." After the ambulance came
and took Maney to the hospital, defendant got out and waited a time
for the state trooper to come, then returned to his house. Trooper
Dietz arrived about ten minutes later.
The jury convicted defendant of driving while impaired ("DWI")
and driving while his license was revoked ("DWLR"), but found him
not guilty of displaying a fictitious license plate. He was
sentenced to 120 days imprisonment on the DWLR conviction and 19 to23 months for a habitual DWI conviction based on his stipulation to
the prior DWIs. From his convictions and sentences, defendant
appealed to this Court.
 At trial, defendant requested the following jury
instruction on the defense of necessity:
I instruct you that North Carolina recognizes
the defense of "necessity." A person is
excused from criminal liability if he acts
under a duress of circumstances to prevent
some serious event from happening, and if he
has no other acceptable choice. The law ought
to promote the achievement of higher values at
the expense of lesser values and sometimes the
greater good for society will be accomplished
by violating the literal language of the
criminal law. If you find that [defendant]
had no other acceptable way in which to
prevent possible injury to occupants and
property damage and only drove to steer the
truck away from houses, the defense of
necessity requires you to find him not guilty.
Defendant contends that it was reversible error for the trial court
to refuse to give his requested instruction on the defense of
"A trial court must give a requested instruction if it is a
correct statement of the law and is supported by the evidence."
State v. Haywood
, 144 N.C. App. 223, 234, 550 S.E.2d 38, 45, appeal
dismissed and disc. review denied
, 354 N.C. 72, 553 S.E.2d 206
(2001). Even in the absence of a request, "[f]ailure to instruct
upon a substantive or 'material' feature of the evidence and the
law applicable thereto will result in reversible error . . . ."
State v. Ward
, 300 N.C. 150, 155, 266 S.E.2d 581, 585 (1980). Any
defense raised by the evidence is deemed a substantial feature of
the case and requires an instruction. State v. Smarr
, 146 N.C. App44, 54, 551 S.E.2d 881, 888 (2001), disc. review denied
, 355 N.C.
291, 561 S.E.2d 500 (2002).
For a jury instruction to be required on a particular defense,
there must be substantial evidence of each element of the defense
when "the evidence [is] viewed in the light most favorable to the
defendant . . . ." State v. Ferguson
, 140 N.C. App. 699, 706, 538
S.E.2d 217, 222 (2000), disc. review denied
, 353 N.C. 386, 547
S.E.2d 25 (2001). "Substantial evidence" is evidence that a
reasonable person would find sufficient to support a conclusion.
State v. Vause
, 328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991).
Whether the evidence presented constitutes "substantial evidence"
is a question of law. State v. Earnhardt
, 307 N.C. 62, 66, 296
S.E.2d 649, 652 (1982).
A. Availability of Necessity Defense in DWI Prosecution
As an initial matter, the State asserts that the defense of
necessity is inapplicable to a DWI prosecution, arguing that DWI is
a strict liability offense to which there are no common law
(See footnote 1)
The only case the State cites for this proposition,
State v. Rose
, 312 N.C. 441, 323 S.E.2d 339 (1984), involved a
challenge that the statute was unconstitutionally vague, id.
442, 323 S.E.2d at 340, and fails to support the State's argument.
The State also points to N.C. Gen. Stat. § 20-138.1(b) (2003),
which provides that "[t]he fact that a person charged with
violating this section is or has been legally entitled to use
alcohol or a drug is not a defense to a charge under this section." N.C. Gen. Stat. § 20-138.1(b). This provision does not establish
a strict liability offense; it simply provides that legal use of
alcohol or drugs does not justify driving while impaired.
The State's argument cannot be reconciled with decisions of
this Court indicating that common law defenses are available in DWI
prosecutions. This Court recently held that "[i]n appropriate
factual circumstances, the defense of entrapment is available in a
DWI trial." State v. Redmon
, 164 N.C. App. 658, 663, 596 S.E.2d
854, 858 (2004) (remanding for new trial for failure to instruct on
defense of entrapment). This Court has also implicitly
acknowledged that the defense of duress would be appropriate in a
DWI trial. See State v. Cooke
, 94 N.C. App. 386, 387, 380 S.E.2d
382, 382-83 (emphasis omitted) ("The trial court was correct in
refusing to instruct the jury on the defense of coercion,
compulsion or duress as there was no evidence that defendant faced
threatening conduct of any kind at the time the officer saw him
driving while intoxicated."), disc. review denied
, 325 N.C. 433,
384 S.E.2d 542 (1989).
Moreover, courts in other jurisdictions have specifically held
that the defense of necessity is available in a DWI prosecution.
, People v. Pena
, 149 Cal. App. 3d Supp. 14, 22, 197 Cal.
Rptr. 264, 269 (1983) (duress/necessity defense was available to a
defendant charged with misdemeanor driving under the influence);
Stodghill v. State
, 881 So. 2d 885, 889 (Miss. Ct. App.)
("[Defendant's] decision to drive after drinking may be excused as
necessary."), cert. denied
, 883 So. 2d 1180 (2004); State v.
, 142 Vt. 558, 562, 458 A.2d 1105, 1107 (1983) (in DWIprosecution, trial court erred in not instructing the jury on the
defense of necessity). We likewise hold that the defense of
necessity is available in a DWI prosecution.
B. The Need for a Jury Instruction on Necessity
This Court has explained, with respect to the defense of
necessity, that "'[a] person is excused from criminal liability if
he acts under a duress of circumstances to protect life or limb or
health in a reasonable manner and with no other acceptable
choice.'" State v. Thomas
, 103 N.C. App. 264, 265, 405 S.E.2d 214,
215 (1991) (quoting State v. Gainey
, 84 N.C. App. 107, 110, 351
S.E.2d 819, 820 (1987)), disc. review denied
, 329 N.C. 792, 408
S.E.2d 528 (1991). Our Supreme Court long ago restricted the
necessity defense to situations where "a human being was thereby
saved from death or peril, or relieved from severe suffering."
State v. Brown
, 109 N.C. 802, 807, 13 S.E. 940, 942 (1891).
Because of this limitation on the defense, defendant's
requested instruction was not a correct statement of the law to the
extent it suggested that the defense was available for attempts to
prevent "serious events" or possible property damage. A trial
judge is not, however, "
relieved of his duty to give a correct . .
. instruction, there being evidence to support it, merely because
defendant's request was not altogether correct." State v. White
288 N.C. 44, 48, 215 S.E.2d 557, 560 (1975). See also State v.
, 34 N.C. App. 606, 608, 239 S.E.2d 276, 277 (1977)
trial judge is not relieved of his duty to give a correct
instruction merely because defendant's request was not altogether
correct."), disc. review denied
, 294 N.C. 362, 242 S.E.2d 632(1978).
The question before this Court is, therefore, whether
defendant presented substantial evidence to support the defense of
A defendant must prove three elements to establish the
defense of necessity: (1) reasonable action, (2) taken to protect
life, limb, or health of a person, and (3) no other acceptable
choices available. Thomas
, 103 N.C. App. at 265, 405 S.E.2d at
In this case, defendant offered evidence that he jumped into
the moving truck and steered it to prevent the truck from hitting
another car or Austin's house and harming someone.
Although the State argues that defendant's testimony was "an
elaborate fabrication," that argument presents a question of
credibility that is solely within the purview of the jury. "All
defenses presented by the defendant's evidence are substantial
features of the case, even if that evidence contains discrepancies
or is contradicted by evidence from the state. This rule reflects
the principle in our jurisprudence that it is the jury, not the
judge, that weighs the evidence." State v. Norman
, 324 N.C. 253,
267, 378 S.E.2d 8, 17 (1989) (internal citation omitted).
The State also appears to argue that there was only a risk of
property damage, rendering the defense inapplicable. Defendant's
evidence, if believed, presented the prospect _ in the absence of
defendant's actions _ of a truck barreling down a steep hill in the
wrong lane of a public road, creating a substantial risk of
physical harm to other drivers or the occupants of the nearby
house. The fact that defendant and Maney were themselves safely
out of harm's way, as the State argues, is irrelevant if the jurybelieved that defendant's actions were necessary to protect others.
See State v. S. Ry. Co.
, 119 N.C. 814, 821, 25 S.E. 862 (1896)
(recognizing that a necessity defense may be available where "it
was necessary . . . in order to preserve the health or to save the
lives of the crew . . ., or relieve them from suffering"); Haywood
144 N.C. App. at 234-35, 550 S.E.2d at 45 (instruction on necessity
proper where defendant testified that he had participated in sexual
assaults to prevent the other defendant from hurting the victim).
Whether jumping into the truck to attempt to stop the vehicle
was reasonable under the circumstances and whether defendant had
any other acceptable options were questions for the jury. The
State argues that because Maney could have jumped into the truck,
there was no need for defendant to get behind the wheel. It was,
however, up to the jury to decide whether the situation involved a
split-second decision in an emergency situation that rendered
defendant's actions reasonable and necessary.
In sum, because the record contains substantial evidence of
each element of the necessity defense, the trial court should have
instructed the jury on that defense. Failure to instruct on a
defense raised by the evidence is reversible error. Ward
, 300 N.C.
at 155, 266 S.E.2d at 585. Accordingly, defendant is entitled to
a new trial.
 Defendant also contends that admission of State's Exhibit
6 during the State's case-in-chief violated N.C. Gen. Stat. § 15A-
928(c)(1) (2003), as well as Rules 402 and 403 of our Rules ofEvidence. We address defendant's argument because of the
possibility of repetition on retrial.
N.C. Gen. Stat. § 15A-928 (2003) governs the method of proof
of previous convictions in superior court when the fact that the
defendant has been previously convicted of an offense raises an
offense of lower grade to one of higher grade and thereby becomes
an element of the latter. It applies to prosecutions for habitual
DWI, State v. Scott
, 356 N.C. 591, 593, 573 S.E.2d 866, 867 (2002),
(c) After commencement of the trial and
before the close of the State's case, the
judge in the absence of the jury must arraign
the defendant upon the special indictment or
information, and must advise him that he may
admit the previous conviction alleged, deny
it, or remain silent. Depending upon the
defendant's response, the trial of the case
must then proceed as follows:
(1) If the defendant admits the previous
, that element of the
offense charged in the indictment or
information is established, no
evidence in support thereof may be
adduced by the State
, and the judge
must submit the case to the jury
without reference thereto and as if
the fact of such previous conviction
were not an element of the offense.
N.C. Gen. Stat. § 15A-928 (emphasis added). "The purpose of this
procedure is to afford the defendant an opportunity to admit the
prior convictions which are an element of the offense and prevent
the State from presenting evidence of these convictions before the
jury." State v. Burch
, 160 N.C. App. 394, 397, 585 S.E.2d 461, 463
In this case, the trial court admitted State's Exhibit 6,
listing defendant's prior convictions, before arraigning defendanton the habitual DWI charge and giving him an opportunity to
stipulate to those prior convictions. This procedure contravened
the purpose of N.C. Gen. Stat. § 15A-928(c) to "insure that the
defendant is informed of the previous convictions the State intends
to use and is given a fair opportunity to either admit or deny them
or remain silent." State v. Jernigan
, 118 N.C. App. 240, 244, 455
S.E.2d 163, 166 (1995).
With respect to the DWLR charge, defendant argues that because
defendant signed a stipulation that his license was revoked on the
date of the offense and that he knew his license had been revoked,
the admission of State's Exhibit 6 violated Rules 402 and 403 of
our Rules of Evidence. As a leading commentator has observed, "a
stipulation or admission by the defendant cannot limit the State's
to prove all essential elements of its theory of the case."
2 Kenneth S. Broun, Brandis and Broun on North Carolina Evidence
198 (6th ed. 2004). See also State v. Jackson
, 139 N.C. App. 721,
732, 535 S.E.2d 48, 55 (2000) (the trial court's decision to allow
evidence of defendant's prior felony conviction, notwithstanding
defendant's tendered stipulation, did not violate Rule 403), rev'd
in part on other grounds
, 353 N.C. 495, 546 S.E.2d 570 (2001).
Nevertheless, the State offers no justification for admission of
defendant's prior convictions, as opposed to just the license
suspension, on the DWLR charge.
Due to our disposition of this case, we need not consider
whether the jury "probably would have reached a different verdict"
had State's Exhibit 6 not been admitted. State v. Walker
, 316 N.C.
33, 39, 340 S.E.2d 80, 83 (1986). Upon retrial, however, theseerrors should be avoided. We decline to address defendant's
remaining contentions on appeal since we believe it is unlikely
that any errors that occurred will be repeated.
Judges HUDSON and THORNBURG concur.
Judge THORNBURG concurred prior to 31 December 2004.