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People v. Kucavik

August 10, 2006

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
SHIRLEY KUCAVIK, DEFENDANT-APPELLANT.



Appeal from the Circuit Court for the 10th Judicial Circuit, Peoria County, Illinois. No. 03-DT-553. The Honorable Brian Nemenoff, Judge Presiding.

The opinion of the court was delivered by: Justice McDADE

Published opinion

The State charged defendant, Shirley Kucavik, with driving under the influence of alcohol. Defendant filed a notice of intent to assert the defense of necessity. At trial defendant stipulated that she drove a vehicle while intoxicated. The State read defendant's stipulation to the jury and rested its case-in-chief. Defendant testified on her own behalf. At the close of all evidence the circuit court of Peoria County refused to instruct the jury as to the defense of necessity. The jury found defendant guilty and the court convicted defendant, sentenced her to 12 months' conditional discharge, and assessed fines. For the reasons that follow, we reverse defendant's conviction and remand for a new trial consistent with this opinion.

BACKGROUND

At trial, defendant testified that on the night in question she went to a bar with her boyfriend, Steven Davis, and his friend, Ryan McMahan. Defendant did not observe McMahan drinking and believed he would be acting as the designated driver and would drive her home at the end of the evening. The trio took defendant's car because McMahan's car was not running well. Defendant and Davis became intoxicated. When the three left the bar, McMahan drove defendant's vehicle. Rather than driving her home, McMahan drove to his home. McMahan and Davis exited the car, leaving defendant in the backseat. Later, Davis exited McMahan's home and got behind the wheel of defendant's vehicle while she sat in the backseat. Defendant protested because she felt Davis was too drunk to drive, but Davis drove off. Defendant began arguing with Davis because she thought they were both too intoxicated to drive. Davis became angry, pulled into the parking lot of Peoria Heights High School, and began squealing the tires and doing "doughnuts."

According to defendant, Davis then drove the vehicle out of the parking lot and returned to the road as they continued to argue. He stopped the vehicle in the middle of the road, got out, and went to the passenger side of the car. Defendant also exited the vehicle and told Davis he could not leave the car there. He then told defendant, "You ignorant bitch. It's your car, you drive it. And if you don't drive it I'm gonna hurt you." Defendant testified she was afraid because Davis abused her in the past, had a tendency to become mean and pushy, and was carrying a switchblade knife. Defendant got behind the wheel, drove two blocks, and parked on Atlantic Street, a side street just off the main road. She then saw a police vehicle's lights behind her. The police officer asked defendant if she had been fighting with Davis in the parking lot of Peoria Heights High School. Defendant said she had not. She testified that she said this because she was afraid of what Davis might do to her.

Defendant testified she drove the vehicle because it was in the middle of the road and she was afraid someone would hit it and get hurt. She was also afraid of Davis and what he might do if he got arrested. Defendant drove two blocks and parked on Atlantic because she "was trying to find a place [she] thought would be safe for [her] to pull into so [she] could walk home." Finally, defendant testified she moved the car only because she "thought it was the best thing to do at the time." The defense rested its case.

The State moved to exclude defendant's proposed instruction on the defense of necessity. The trial court granted the State's motion over defendant's objection. In closing argument, the State told the jury that defendant had stipulated to committing the offense of driving under the influence, that the defense of necessity was no longer an issue in the case, and, therefore, the law required the jury to return a guilty verdict.

During deliberations, the jury posed the following question: "Necessity Defense--is there a law that says it is acceptable to drive car [sic] under the influence of alcohol to avoid a greater injury under the DUI laws? Please clarify this law." Over defendant's objection, the court returned the following answer: "The question of necessity is no longer part of this case. The decision of whether to find that the Defendant is guilty or not must be based upon the instructions given to you and the evidence which pertains to those instructions." The jury returned a guilty verdict shortly after receiving the court's response. This appeal followed.

ANALYSIS

Defendant signed off on the following stipulation:

"The State and the Defense both stipulate, or agree, that the Defendant committed the offense of driving under the influence of alcohol on the date in question, September 23, 2003.

A person commits the offense of driving under the influence of alcohol when they drive a vehicle under the influence of alcohol. A person is under the influence of alcohol when, as a result of drinking any amount of alcohol, his/her mental or physical faculties are so impaired as to reduce his ability to think and act with ordinary care."

The State read this stipulation to the jury and rested its case. It presented no further evidence. Defendant was the sole witness in her case and her testimony concerning the facts surrounding her driving of the car stands undisputed. According to her testimony, defendant had a choice: she could leave the car standing in the middle of the public street or she could move it out of the lane of traffic. Although to do the latter would constitute the crime of driving under the influence of alcohol, a jury could find that a person reasonably would have felt compelled to move the car. Therefore, defendant made a sufficient showing to require the submission of the necessity instruction to the jury. Whether ...


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