I Had No Choice: Affirmative Defenses to DUI and DWI Charges

In the state of Texas, a driver is intoxicated and can be arrested and charged with DWI or DUI if his or her alcohol blood content level is above the permissible legal limit. There are limited circumstances in which a driver that drives drunk may present an affirmative defense to his or her drunk driving action. Below is a list of the affirmative defenses available to a criminal defendant that has been arrested and charged with a DWI or DUI. As in all criminal actions, consult a DWI/DUI criminal defense attorney as soon as reasonable to review the specific facts of your case immediately following your arrest.


The affirmative defense of necessity may arise if the drunk driver can prove that he or she had to drive to prevent a greater problem with more serious consequences than a DWI or DUI. An example is you and your friend are out for the night. Your friend drove but is more intoxicated than you when it is time to leave. There are no taxis, friends, or family available to take you home and your friend becomes violently ill and needs to be taken to the emergency room. Because there are no other drivers and your friend is experiencing a medical emergency, you get behind the wheel and drive to the hospital. On the way to the hospital a police officer spots you because of erratic driving. You consent to a breathalyzer test and blow above .08%. At the scene of the traffic stop you are arrested and taken into custody for DWI and an ambulance takes your friend to the hospital for diagnosis and treatment of alcohol poisoning. The facts surrounding your necessity defense must be extreme and supported by other evidence to support your belief that you had no choice but to drive drunk to avoid a great harm or danger.


In a DWI or DUI setting duress means that you were forced to drive drunk under threat of force or death.


One of the most difficult affirmative defenses to prove is that you were subject to entrapment by a police officer. Beyond a reasonable doubt, you must establish that a police officer forced you to drive drunk, which is an unlikely scenario.

Mistake of Fact

Mistake of fact is a subjective standard. You must prove that you honestly believed you were not intoxicated or under the effect of prescription drugs when you drove your vehicle. In other words, you believed the effects of your prescription drugs had worn off because the requisite time period of limitation expired.

Involuntary Intoxication

Involuntary intoxication occurs when the intoxicated person had no idea he or she drank alcohol or was under the influence of illegal drugs when he or she drove. The punch at the party was spiked or a drug was slipped into your soda water drink and you drove home after the event.

How Can We Help?

If you are facing DWI or DUI criminal charges, without delay, consult an experienced DWI attorney. Kimberly Griffin Tucker and her team are ready to assist you resolve your DWI case,
helping clients in the Plano and Dallas area. Call (214) 445-6336 to schedule an immediate free consultation. Reach us 24 hours a day via phone and email. Our Plano, Texas office is only a phone call away.