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State v. L'Heureux4/23/2004
ther houses in the neighborhood and other residents in the vicinity. The court noted that this created the "fatal flaw" in the defendant's effort to assert the defense.
The defendant challenges this ruling, arguing that he considered every option before deciding to drive his vehicle to the police station. In contrast, the State argues that the defendant had numerous alternatives short of driving his vehicle that he should have pursued. While we agree that the defendant may have had other legal alternatives available, that finding is not dispositive of the legal issue before the trial court.
In O'Brien, 132 N.H. at 590, we stated that in order for the competing harms defense to be available, one requirement that must be satisfied is that there be "no lawful alternative" to the otherwise illegal conduct. Here, the trial court, understandably, construed this statement literally, and determined in this case whether there was "no lawful alternative" available. We conclude that the trial court used the wrong legal standard when applying the second prong of the O'Brien test.
We have explained that it is the law of this State that the defense of competing harms is not available when lawful alternatives exist which will cause less, if any, harm than the otherwise illegal conduct. Id. We construe this requirement so as to promote justice, cf. RSA 625:3, and in accord with the holdings of courts in other jurisdictions, we conclude that in order for a lawful alternative to be "available" to the defendant, it must be reasonable. See Andrews v. People, 800 P.2d 607, 610 (Colo. 1990).
In this case, by inquiring whether there was "no lawful alternative" available, no matter how unreasonable any such alternative might be, the standard imposed by the trial court was too high. The trial court determined whether no lawful alternatives to the illegal conduct existed, rather than whether no reasonable, lawful alternatives existed.
Accordingly, we vacate and remand for application of the correct legal test by the trial court. We express no opinion as to whether the evidence, viewed in the light most favorable to the defendant, would support a finding that there were no reasonable, lawful alternatives that would cause less, if any, harm – we leave to the trial court the application of the correct legal standard in the first instance.
Vacated and remanded.
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