justification defense available in certain civil forfeiture actions, when the “‘conduct is justified because it preserves or has a tendency to preserve some greater social value at the expense of a lesser one in a situation where both cannot be preserved.’”
How later courts described this case
- justification defense available in certain civil forfeiture actions, when the “‘conduct is justified because it preserves or has a tendency to preserve some greater social value at the expense of a lesser one in a situation where both cannot be preserved.’”
- “We need not and we do not decide whether a defense of legal justification is available to the defendant in a civil forfeiture action for speeding if the causative force is someone or something other than a law enforcement officer.”
Written by the judges who cited it.
The opinion
WILLIAM G. CALLOW, J.
(concurring). I agree with the majority that an alleged strict liability offense which was provoked by a law enforcement officer is properly subject to the defense of legal justification. I believe, however, that in making traffic violations strict liability offenses, the legislature has determined that the public interest in highway safety and the expeditious enforcement of traffic laws outweighs an individual defendant’s interests of a personal nature in any other circumstances.
The majority does not reach the issue of whether a defense of legal justification will be recognized if the causative force is someone or something other than the conduct of law enforcement personnel. {Swpra,, p 56.) I would reach this issue, and I would not extend the defense of legal justification beyond conduct provoked by law enforcement personnel. Recognizing any defense of “excusable conduct” stemming from a defendant’s perceived justifications would require, in my opinion, the prosecuting authority to prove the defendant’s culpable *58 state of mind and rebut the defense of justification for the admitted misconduct. I believe this defeats the primary premise that the public must obey traffic regulations in order to protect and promote public safety. The traveling public should be able to rely on the absolute requirement that traffic laws must be obeyed. The proposition that each driver could selectively evaluate the situation and violate the law with an expectation of impunity is unthinkable. A rule permitting judicial recognition of a defense of legal justification or excusable misconduct in any situation other than that reflected in the majority opinion would not only contravene well-established public policy, but it would have a disastrous impact on the judicial system, resulting in burgeoning the court calendar with traffic cases.
If there are any excusable circumstances, both the law enforcement officer on the road and the prosecuting authority are clothed with substantial discretion. They are a first and second echelon of authority to evaluate the facts of each case to determine whether prosecution is warranted. The broad range of penalties for most traffic offenses gives a third echelon of authority, the judge, latitude in imposing a modest penalty in an appropriate case. For these reasons, I make the declaration set forth in this concurrence.
I am authorized to state that Chief Justice Bruce F. Beilfuss joins in this concurring opinion. .