Key points
- Duress is a common-law affirmative defense in Michigan; it applies where the act committed avoids a greater harm, and it requires a threat that would make a reasonable person fear death or serious bodily harm.[1][2]
- Michigan courts distinguish the two defenses by the source of the pressure: another person's threats for duress, natural physical forces for necessity.[3]
- The defense is forfeited if the defendant passes up a reasonable, safe chance to escape or keeps going after the threat ends, and it is unavailable if the danger arose from the defendant's own fault.[4][5]
- Who carries the burden on duress is unsettled: one Court of Appeals case puts it on the prosecution once the defense is raised, while the jury-instruction committee says the Supreme Court has avoided the question.[6][7]
Michigan recognizes duress as a common-law affirmative defense that "is applicable in situations where the crime committed avoids a greater harm," and Michigan courts describe necessity as a related defense where the pressure comes from natural physical forces rather than another person's threats.[1][3] People sometimes ask whether these defenses apply to someone who drove only to escape an immediate danger. The verified sources set narrow requirements, described below, and this guide found no verified Michigan appellate decision applying either defense to a drunk-driving charge.
This page sets out what the verified sources say: the elements of duress, how the defense is lost, who has the burden, and what remains unsettled. It is a description of the law, not a suggestion that any particular set of facts qualifies.
What an affirmative defense is
In every criminal trial, jurors are told the defendant is presumed innocent, the prosecutor must prove each element beyond a reasonable doubt, and the defendant is not required to prove innocence or do anything.[8] The same instruction's use note adds that "for some affirmative defenses, a defendant must produce evidence."[8] An affirmative defense like duress does not deny the act; it says the act is excused by the circumstances. In the Supreme Court's words, the compulsion "overcomes the defendant's free will."[1]
The OWI offense itself has three elements: operating a motor vehicle, on a highway or other place open to the public or generally accessible to motor vehicles, while under the influence or with an unlawful bodily alcohol content.[9] A duress or necessity claim does not dispute those elements; disputes about whether the person was driving at all are covered in disputes over who was driving.
The elements of duress
The Michigan Supreme Court in People v Lemons (1997) listed four elements, quoting its earlier decision in Luther:[2]
- The threatening conduct was enough to make a reasonable person fear death or serious bodily harm.[2]
- The conduct actually caused that fear in the defendant.[2]
- The fear was operating on the defendant's mind at the time of the act.[2]
- The defendant committed the act to avoid the threatened harm.[2]
The model jury instruction, M Crim JI 7.6 (amended December 2024), states the elements for jurors in its own words, and its fourth element is that "the situation did not arise because of the defendant's fault or negligence."[7]
Limits: imminence, fault and escape
Three further rules narrow the defense:
- Imminence. "A mere threat of future injury is insufficient"; the danger "must be present, imminent, and impending."[4]
- No fault. The danger must not have resulted from the negligence or fault of the person claiming the defense.[4]
- Forfeiture. The defense may be forfeited if the defendant fails to take a reasonable opportunity to escape that would not unduly expose him or her to death or serious bodily harm, and if the defendant fails to stop the conduct once the duress is no longer coercive.[5]
Jurors are also asked to think about whether the defendant "could have avoided the harm [he or she] feared in some other way than by committing the act," and how reasonable those other means would have seemed to a person in the defendant's situation at the time.[10]
Necessity: what is and is not verified
The Criminal Proceedings Benchbook notes that "duress is not the same as necessity," quoting the Court of Appeals: the source of compulsion for duress is the threatened conduct of another human being, while for necessity it is the presence of natural physical forces.[3] That distinction comes from People v Hubbard (1982), quoting People v Hocquard (1975).[3]
The model jury instructions in this guide's sources contain an instruction for duress but none for necessity, and this guide did not verify a Michigan primary source listing the elements of necessity. For that reason this page does not state them. A reader facing a necessity question needs the current case law applied to the specific facts.
Who must prove what
A defendant must make a prima facie showing on the elements of duress, by introducing "some evidence from which the jury could conclude that the elements of duress are satisfied," before the jury is instructed on it.[6] What happens next is not settled:
| Source | What it says about the burden |
|---|---|
| Criminal Proceedings Benchbook, citing People v Terry (1997) | Once the defense is successfully raised, the prosecutor must prove beyond a reasonable doubt that the defendant did not act under duress.[6] |
| M Crim JI 7.6, Use Note 2 | The Supreme Court avoided deciding whether the defendant must prove duress by a preponderance or the prosecutor must disprove it, in both Reichard (2020) and Lemons (1997); the committee takes no position and gives alternative paragraphs.[7] |
Which version a trial judge gives is decided in the individual case. For how a district court jury trial runs, see jury trials in OWI cases and the jury instructions for OWI.
Questions that are open for OWI charges
Several points that matter to drunk-driving cases were not answered by any verified source:
- Whether, and how, Michigan appellate courts have applied duress or necessity to an OWI charge.
- How the no-fault element applies when the person's own drinking came before the danger.
- How either defense interacts with the offenses of OWI causing death or serious injury. For those offenses, the jury instruction includes a separate element that the defendant "voluntarily decided to drive" knowing he or she had consumed alcohol or drugs and might be intoxicated.[11]
Where the law is unsettled, results can vary by court and by the facts proved. This guide does not predict outcomes.
What these defenses are not
- Not a "had to get home" excuse. The threat must create a reasonable fear of death or serious bodily harm and be present and imminent, not a future or general concern.[2][4]
- Not the license question. Driver's license consequences are a separate subject; see what an OWI does to your driver's license.
- Not the same as disputing operation. Whether a parked or stopped car was being "operated" is a separate question, discussed in what counts as operating and sitting in a parked car.
For the full list of evidence categories in an OWI case, see the evidence in an OWI case.
Common questions
Can driving to escape danger be a defense to OWI in Michigan?
Michigan recognizes duress as a common-law affirmative defense that applies where the act committed avoids a greater harm.[1] It requires a present, imminent threat of death or serious bodily harm and is forfeited if a reasonable, safe escape was available or the conduct continued after the threat ended.[2][4][5] This guide found no verified Michigan appellate decision applying duress or necessity to an OWI charge, so how a court would rule depends on the facts and the judge.
What is the difference between necessity and duress?
Michigan courts have said the difference is the source of the compulsion: for duress it is "the threatened conduct of another human being," and for necessity it is "the presence of natural physical forces."[3] The elements of duress are set out in Supreme Court case law and a model jury instruction.[2][7] This guide did not verify a separate list of necessity elements from a Michigan primary source.
Who has to prove duress?
The defendant must first introduce some evidence of each element before the jury is instructed on it.[6] After that, the Criminal Proceedings Benchbook cites People v Terry for the rule that the prosecutor must disprove duress beyond a reasonable doubt, but the jury-instruction committee notes the Supreme Court has avoided deciding the question and offers alternative instructions.[6][7]
Does it matter that I chose to drink?
It can. The duress elements require that the danger not have resulted from the negligence or fault of the person claiming the defense, and the jury instruction asks whether the situation arose because of the defendant's fault or negligence.[4][7] How that element applies to drinking that came before a threat is a question for the court in each case; this guide found no verified OWI ruling on it.
Is a fear of something that might happen later enough?
No. The benchbook quotes the Court of Appeals: a mere threat of future injury is not enough, and the threatened danger must be present, imminent and impending.[4] The jury instruction also asks jurors to consider whether the defendant could have avoided the feared harm some other way, and how reasonable those other means would have seemed at the time.[10]
Sources
- People v Lemons, 454 Mich 234, 245-246 (1997); People v Luther, 394 Mich 619, 622 (1975) — Michigan Courts
- People v Lemons, 454 Mich 234, 246-247 (1997) — Michigan Courts
- People v Hubbard, 115 Mich App 73, 77 (1982), quoting People v Hocquard, 64 Mich App 331, 337 n 3 (1975) — Michigan Courts
- People v Ramsdell, 230 Mich App 386, 401 (1998); People v Lemons, 454 Mich 234, 247 (1997) — Michigan Courts
- People v Lemons, 454 Mich 234, 247 n 18 (1997) — Michigan Courts
- People v Lemons, 454 Mich 234, 248 (1997); People v Luther, 394 Mich 619, 623 (1975); People v Terry, 224 Mich App 447, 453-454 (1997) — Michigan Courts
- M Crim JI 7.6 and Use Note 2 — Michigan Courts
- M Crim JI 3.2(1)-(2) and Use Note — Michigan Courts
- People v Hyde, 285 Mich App 428, 447–448 (2009) — Michigan Courts
- M Crim JI 7.6(3)-(4) — Michigan Courts
- M Crim JI 15.2a(5)-(6) — Michigan Courts
This page is general legal information about Michigan law, published by the office of Attorney Shawn Haff. It is not legal advice and reading it does not create an attorney-client relationship. Laws change and every case turns on its own facts — check the sources linked above and talk to a licensed Michigan attorney about your situation. In an emergency, call 911. For confidential help with alcohol or drug use, the SAMHSA National Helpline is 1-800-662-4357.