Duress is available in California DUI or drunk driving cases according to the decision in People v. Pena (1983) 149 Cal.App.3d Supp. 14. However, Pena's interchangeable use of the terms duress and necessity were clearly incorrect. (People v. Heath (1989) Cal.App.3d 892).
In California DUI / drunk driving cases, a criminal defense attorney can ask for the jury instruction if there is sufficient evidence to support the two duress defense elements:
1. A reasonable person would have feared an immediate threat to his own life, and;
2. The California DUI defendant in fact had that fear.
Penal Code Section 26(7); CALJIC 4.40 or CALCRIM 3402.
The California DUI or drunk driving necessity defense is not codified in California like the duress defense, but it has six elements, all incorrectly referred to in Pena as justification or duress.
CALCRIM 3403 States:
In order to establish this defense, the defendant's California DUI criminal defense lawyer must prove that:
1. He acted in an emergency to prevent a significant bodily harm or evil to himself or somebody else;
2. He had no adequate legal alternative;
3. The defendant's acts did not create a greater danger than the one avoided;
4. When the defendant acted, he actually believed that the act was necessary to prevent the threatened harm or evil;
5. A reasonable person would also have believed that the act was necessary under the circumstances;
6. The defendant did not substantially contribute to the emergency.
The California DUI criminal defense attorney's client has the burden of proving this defense by a preponderance of the evidence. This is a different standard of proof than proof beyond a reasonable doubt. To meet the burden of proof by a preponderance of the evidence, the California DUI defendant 's criminal defense lawyer must prove that it is more likely than not that each of the six listed items is true.