Tarvestad v. State

McMurray, Presiding Judge. Defendant was indicted for being a habitual violator in that he did “operate a motor vehicle after having received notice that his driver’s license had been revoked as provided in O.C.G.A. 40-5-58 without having obtained a valid driver’s license after said revocation. ...” Defendant was tried before a jury and found guilty of the offense charged. This appeal followed the denial of defendant’s motion for new trial. Held: Defendant contends the trial court erred in failing to give his orally requested charge on justification, OCGA § 16-3-20 (6). Defendant argues that the evidence authorized such an instruction. Defendant testified and admitted that he knowingly drove a motor vehicle after being declared a habitual violator, but defendant explained that he intentionally violated the law so. that he could drive his pregnant wife to a scheduled doctor’s appointment. These circumstances do not authorize the “lesser of two evils” defense of OCGA § 16-3-20 (6). OCGA § 16-3-20 “should provide a defense to an actor who commits a relatively minor offense in order to prevent an imminent harm less than death or great bodily injury.” Kurtz, Criminal Offenses & Defenses in Ga. (2d ed.), pp. 250, 252. In the case sub judice, there is no evidence that defendant was faced with an emergency. Defendant was merely taking his wife to the doctor for a scheduled examination. Further, even if defendant’s wife had been in labor, defendant’s intentional violation of the law would not be justified. Defendant was aware that his wife was eight-and-one-half months pregnant and he knew that she would soon be in need of transportation for medical treatment. Nonetheless, he failed to make arrangements for the expected emergency, disregarding his status as a habitual driving violator. Consequently, the trial court did not err in refusing to give defendant’s orally requested charge on justification. Judgment affirmed. Banke, P. J., Cooper and Andrews, JJ., concur. Beasley, J., concurs in the judgment only. Sognier, C. J., Birdsong, P. J., Carley and Pope, JJ., dissent.