COA: Defendant not entitled to jury instruction on necessity at OWI trial because turning on vehicle was not only means to prevent harm from exposure to cold.
City of Kenosha v. Jackson Rathod, 2024AP2307, 10/28/26, District II (not eligible for publication); case activity
The COA affirmed the defendant’s conviction for operating a motor vehicle while intoxicated. It held that the defendant was not entitled to have the jury instructed on necessity because he had an alternative means of staying warm after drinking alcohol at a winter house party, other than returning to his car to turn on the heat.
At 4 a.m. in December 2022, a police officer approached a vehicle parked on a Kenosha street with its engine running. Jackson Rathod, the only occupant of the vehicle, was in the driver’s seat “slumped over the center console.” (¶ 2). The officer woke up Rathod, who said he was at a house party and was warming up in the car before he went home. Rathod admitted he was drinking, smelled of alcohol, and there was vomit on his jacket and throughout the vehicle. After administering field sobriety tests, Rathod was charged with operating a motor vehicle while intoxicated. (¶ 3).
At his jury trial, Rathod asked the court to instruct the jury on the affirmative defense of necessity in light of his testimony that he left the party around midnight, vomited on himself, and did not want return to the party because he was embarrassed about throwing up. Instead, he said, he went in his car that was parked two minutes away from the party and turned on the heat to stay warm. Rathod was concerned about frostbite or hypothermia if he did not turn on the car’s heat. (¶¶ 7-8). The circuit court denied Rathod’s request to instruct the jury on necessity because his reluctance to return to the party was not due to the pressure of a natural physical force, which is required by Wis. Stat. § 939.47 for necessity to apply as an affirmative defense. (¶ 13).
The COA noted that, in addition to Wis. Stat. § 939.47, case law establishes four elements for the necessity defense to apply: 1) the defendant must have acted under pressure from natural physical forces; 2) the defendant’s act was necessary to prevent imminent public disaster, death, or great bodily harm; 3) the defendant had no alternative means of preventing the harm; and 4) the defendant’s beliefs were reasonable. (¶ 14). The COA determined Rathod had an alternative to prevent harm because he “knew he had another means of staying warm – going back inside the house he had just recently left . . . Rathod had an alternative means to avoid both potential harm from the cold and breaking the law – going back into his colleague’s house; he simply did not prefer that choice because of the risk of embarrassment.” (¶¶ 17, 22).