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Bodner v. State5/30/2000
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Bodner's second constention is that if, despite her argument to the contrary, the jury found that she was in actual physical control of the vehicle when she attempted to move it off the railroad tracks, she was justified in taking that action. Bodner submits any vehicle that is immobilized on a railroad track is in danger of being hit by a train. The Superior Court denied Bodner's request for a choice-of-evils instruction because it concluded that there was no danger to a vehicle on a railroad track unless a moving train was in sight.
Bodner argues that the Superior Court erroneously denied her request to give a jury instruction on "justification/choice-of-evils," pursuant to 11 Del. C. § 463. The justification or choice-of-evils defense is appropriate when the evidence reflects a situation where someone must decide to commit what is otherwise a crime in order "to avoid an imminent public or private injury" that was not the result of the defendant's own conduct. An example of such a choice-of-evils circumstance is where an inmate must escape from prison to flee from a fire. While a prison inmate may justifiably escape to avoid injury in a prison fire he or she did not cause, once the inmate reaches a point of safety he or she is under an obligation to surrender promptly to lawful authorities.
An accused is entitled to a jury instruction if evidence has been produced to support a particular defense. Bodner argues the record reflects that she was confronted with a choice-of-evils situation recognized under 11 Del. C. § 463. Accordingly, Bodner submits that she had a legally cognizable qualified right to commit the criminal offense of driving under the influence , by attempting to remove the vehicle from the railroad track, "to avoid an imminent public or private injury that was not the result of her own conduct.
A rational trier of fact could conclude that a disabled vehicle on a railroad track constitutes an imminent danger even when no moving train is in sight. The credibility of Bodner's testimony that she did not cause the vehicle to become lodged on the railroad tracks was for the jury to determine. The Superior Court erred as a matter of law by not instructing the jury on Bodner's choice-of-evils defense.
Conclusion
Therefore, the judgments of the Superior Court are reversed. This matter is remanded for a new trial in accordance with this opinion.
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