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State v. Caswell, attorneys and footnotes

                                          
Attorneys for State:

David W. Crook, District Attorney
Janice Stuver, Asst. Dist. Atty.
95 State Street
Augusta, ME 04330

Attorney for defendant:

David M. Sanders, Esq.
P O Box 271
Livermore Falls, ME 04254-0271
FOOTNOTES******************************** {1} . Upon conviction, the Superior Court sentenced Caswell to six months in the county jail, all but thirty days suspended with probation for one year, a fine of $1000, and a four-year suspension of her driver's license and registration privileges. Pursuant to 29-A M.R.S.A. § 2411(5)(C), the thirty days' jail time, the $1000 fine, and the four-year suspension of driving privileges were mandatory minimums for conviction of a third offense of operating under the influence. {2} . 17-A M.R.S.A. § 103(1) reads as follows: § 103 Competing harms 1. Conduct which the actor believes to be necessary to avoid imminent physical harm to himself or another is justifiable if the desirability and urgency of avoiding such harm outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the statute defining the crime charged. The desirability and urgency of such conduct may not rest upon considerations pertaining to the morality and advisability of such statute. {3} . 29-A M.R.S.A. § 2411(1)(B) prohibits operating a motor vehicle while under the influence of alcoholic beverages or while having a blood alcohol content of .08 percent or higher. {4} . She could have, for example, called a taxi to take her home. {5} . The United States Supreme Court in Bailey held that the defendants who broke out of jail because of repeated beatings by guards were not entitled to have duress or necessity defense go to the jury, because their initial defense was lost when they failed to make a bona fide effort to terminate their unlawful conduct "as soon as the claimed duress or necessity had lost its coercive force." United States v. Bailey, 444 U.S. 394, 412-13 (1980). {6} . I also disagree that we can speculate that once Caswell got to the gasoline station she could call a taxi to get her. We must take the evidence in the light most favorable to the defendant, and there is no evidence from which such inference can be made. {7} . The common law defense of necessity required that there be no reasonable legal alternative to violating the law. See United States v. Bailey, 444 U.S. 394, 410 (1980). Although we have noted that the common law defense of necessity did not survive the adoption of the Criminal Code, see State v. Poole, 568 A.2d 830, 832, we have incorporated this common law requirement into the competing harms defense. See Moore, 577 A.2d at 350. {8} . I do not suggest that Dr. Rines's testimony was relevant for any issue other than Caswell's lack of a reasonable alternative to driving.

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