District Attorney Neal Pinkston enters criminal court in Chattanooga. Cops oversupply his office with cases, and it may decide to drop yours if you insist on your rights to go to trial, at which you may want to use the defense of necessity. (Photo David Tulis)

If you signed the criminal complaint against you (traffic ticket) and are in the crowd of people awaiting to confront your accuser, the hallowed State of Tennessee, you have a defense that came from the lips of the world’s most innocent, yet most accused, person.

By David Tulis / 92.7 NoogaRadio

And that is the Lord Jesus Christ, who gives a defense we can use in traffic court (city or county sessions) and in instances of greater import. We say your rights are God-given. If that is true, you are right to understand that standing on your rights is defending God’s character and His gift to you and your family. For God loves liberty, and promises it in every city that loves him and obeys his laws.

The necessity defense is a common law remedy that highlights human need over the law. It is a biblical construct explained by Christ himself when He and his disciples were accused of toiling in the grain fields on the sabbath day, the day of rest in old Israel.

“At that time Jesus went through the grainfields on the Sabbath. And His disciples were hungry, and began to pluck heads of grain and to eat. And when the Pharisees saw it, they said to Him, ‘Look, Your disciples are doing what is not lawful to do on the Sabbath!’ But He said to them, ‘Have you not read what David did when he was hungry, he and those who were with him: how he entered the house of God and ate the showbread which was not lawful for him to eat, nor for those who were with him, but only for the priests? Or have you not read in the law that on the Sabbath the priests in the temple profane the Sabbath, and are blameless?’”

(Matt. 12:1-5)

The Lord Jesus goes on to declare the need to rescue a person or animal in an accident on the day of rest surpasses any custom or rule. “What man is there among you who has one sheep, and if it falls into a pit on the Sabbath, will not lay hold of it and lift it out? Of how much more value then is a man than a sheep? Therefore it is lawful to do good on the Sabbath” (Matt. 12:11, 12).

Even the Lord’s critics, he asserts, would labor to save a trapped animal. So it is no sin.

➤ “The Lord then answered him and said, ‘Hypocrite! Does not each one of you on the Sabbath loose his ox or donkey from the stall, and lead it away to water it? So ought not this woman, being a daughter of Abraham, whom Satan has bound — think of it — for eighteen years, be loosed from this bond on the Sabbath?’” Luke 13:15, 16 ‡‡

➤ “People do not despise a thief if he steals to satisfy himself when he is starving.” Proverbs 6:30

➤ The gleaner’s law in Israel required the farmer to leave behind part of the harvest for poor people such as Ruth, whose poverty necessitated that they harvest in the fields of others.

The necessity defense is a common law defense in Tennessee codified to say that potentially illegal conduct “is justified, if: (1) The person reasonably believes the conduct is immediately necessary to avoid imminent harm; and (2) The desirability and urgency of avoiding the harm clearly outweigh the harm sought to be prevented by the law proscribing the conduct, according to ordinary standards of reasonableness” (Tenn Code Ann. § 39-11-609. Necessity). **

Juries use necessity to spike bad law

All manner of lawlessness and tyranny in our day by the state is justified by “compelling state interest,” as it is called. “Necessity is the tyrant’s plea,” summarizes the perspective. The necessity defense in scripture is evidenced in the defense by Israelites of Jonathan’s assault on the Philistines and his having eaten honey despite King Saul’s edict that no one was to eat anything until a victory in battle had been declared (1 Sam. 14).

The people would not have none of it. “And Saul answered, ‘God do so and more also; for you shall surely die, Jonathan.’ But the people said to Saul, ‘Shall Jonathan die, who has accomplished this great deliverance in Israel? Certainly not! As the Lord lives, not one hair of his head shall fall to the ground, for he has worked with God this day.’ So the people rescued Jonathan, and he did not die” (1 Sam. 14:44,45).

This deliverance is biblical warrant for the doctrine of necessity as applied to trials and juries — it is warrant for the power of juries to nullify bad law and rule against the state when prosecutions are based on bad law or decent law wrongly applied.

How to claim necessity defense

The necessity defense as against transportation code charges (“driving on revoked,” “failure to exhibit on demand,” “driving on suspended”) is based on crucial-to-life causes that are reasonable.

Reasonableness is subjective, of course, but if you get before a jury, your job is to convince its men and women (local residents, all) that your use of your car despite having a revoked license is based on human urgencies, human compulsions, human duties and ethical and moral obligations. These may not be necessities of one facing immediate death. But they are still compelling.

These should start with your activities on the day you were charged. Why were you in your car? Perhaps it was traveling to shop at the Hixson Aldi after work. You went to the store for food, without which your table is empty and you will starve. And work? You have a right to fulfill the callings God ordained for you in your occupation or trade. Or you were out and were heading toward a gas station for fuel and were stopped by a cop. Getting fuel for your car is a necessity, for without fuel your car is a useless hunk of metal, a pointless bit of private chattel property. With fuel, you accomplish all your necessaries, including getting to a job or executing your livelihood.

Perhaps you were on the road to Knoxville with your mom because, next day, she was to have a visit with her neurologist. That trip is a life-and-death necessity for both of you, and every mile between here and Knoxville is under necessity of travel. The death prospect is not imminent, but ultimate in your thinking, and thus reasonable. If you demand your right to a jury trial, you can make this argument yourself before the 12 fellow citizens who are your jury. They will absorb every word you utter.

No law can prevent a man from self-preservation. Making a living while traveling about without a state license fulfills one’s necessary duties while causing no injury to the accuser, the state, which cannot show itself harmed in any way and whose claims usually fail to meet the usual legal requirement of standing before it brings an action. You will be able to make this point in your closing argument.

Necessity is choosing, perhaps, the lesser of two evils.

“This species of necessity is the result of reason and reflection and obliges a man to do an act, which, without such obligation, would be criminal,” says one scholar. “This occurs, when a man has his choice of two evils set before him, and chooses the less pernicious one. He rejects the greater evil and chooses the less. As where a man is bound to arrest another for a capital offence, and being resisted, kills the offender, rather than permit him to escape.” (William Blackstone’s famous description comes under the heading “choice of two evils” (Book 4 of his Commentaries on the Laws of England, circa 1756).

How DA might attack you

The state attorney’s attack on your defense is summarized in a Missouri appellate court opinion.

“Crucial to the application of the doctrine is the imminence of the danger and the existence of an emergency situation. *** The application of the defense (of necessity) is limited to the following circumstances: (1) the defendant is faced with a clear and imminent danger, not one which is debatable or; (2) the defendant can reasonably expect that his action will be effective as the direct cause of abating the danger; (3) there is no legal alternative which will be effective in abating the danger; and (4) the legislature has not acted to preclude the defense.” State of Missouri v. Samuel L. Diener, 706 S.W.2d 582 (1986)

‘Traveling under notice’

The necessity defense is useful if you are caught in a police trap and face “driving on revoked” charges. You are being accused because for a technical glitch you have been stopped while using a car or truck freely as a matter of right. Your rationale for being on the road in Chattanooga and Hamilton County (and several other jurisdictions) is necessity.

You are prepared to use it in court. If you are using my notice you should be ready to stand tough. “Officer, sir, I am traveling under [transportation administrative] notice and I make no statement without my lawyer present.” Do not answer any questions (such as, “What notice?” or “Who is your lawyer?”).

Keep your mouth shut and make no small talk.

You have done nothing wrong, are not a criminal, not evil in any way. You are using your car as a necessity and duty, but at the moment face citation or arrest and criminal charges under Tenn. Code Ann. § Title 55.  

Court system overloaded (good)

I strongly urge you, if you are forced into the legal system, to demand your right to an indictment and demand a jury trial. It’s possible that the DA’s office will drop the case at the last minute when the attorney realizes you intend to go through with a jury trial, and he has no interest in chasing such a petty case.

Cops and deputies in Hamilton County pour 50,000 cases a year into the court system, and the DA’s office will ignore or reject all but the most serious ones. The people of Tennessee are overpoliced. Count on the volume of cases to be on your side if you plan to “go down to the wire” with the case. The DA’s office last hope for an easy win against you is to press the cop’s claim by offering you a hasty hallway plea bargain.

Simply reject it an demand all of your rights — the right to be heard, the right to face your accuser, the right to confront witnesses, the right to a jury trial.

Use the evil charges against you (outside the scope of Title 55 as they are) to inspire another person to do likewise, to resist an ungodly and unlawful system. If you and other defendants demand your rights to a jury trial, the system would clog up, and cops would get the message eventually to cut back on arrests.

Demanding a trial and pleading necessity are protected by the ninth amendment to the U.S. constitution, which says, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” You have rights not even listed. Praise God you want to live more like a free person, and less like a hapless and indifferent subject.

Traveling under umbrella of ‘the notice’

‡ See also 2 Chron. 30:17-19. “For there were many in the assembly who had not sanctified themselves; therefore the Levites had charge of the slaughter of the Passover lambs for everyone who was not clean, to sanctify them to the Lord.For a multitude of the people, many from Ephraim, Manasseh, Issachar, and Zebulun, had not cleansed themselves, yet they ate the Passover contrary to what was written. But Hezekiah prayed for them, saying, “May the good Lord provide atonement for everyone who prepares his heart to seek God, the Lord God of his fathers, though he is not cleansed according to the purification of the sanctuary.”

** Tennessee exceptions and alternative defenses to necessity are at §§ 39-11-611 to 39-11-616 (reasonableness in executing “public duty”;  self-defense; defense of a third person; use of force to prevent a suicide; protection of property in a trespass; protection of another person’s property; and use of a device to protect property), 39-11-620 (police officer’s license to kill the citizenry) and 39-11-621 (use of deadly force by a private citizen).

Get your TAN now: Transportation Administrative Notice creates cause of action vs. cops, traffic court defense

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