By James Nicodemus
Special to Wisconsin Law Journal
If a woman claims she was going faster than 90 mph in a 55 mph zone to get away from an unknown vehicle that was terrorizing her and following her every move, can the trial court legally recognize this as a “necessity” defense for speeding?
In an opinion issued May 23 in State of Wisconsin v. Tammy S. Camden, 2012 AP 1451, 2013, the appellate court found that existing case law provided limited circumstances when speeding drivers could say they “needed” to speed.
Although the Wisconsin Supreme Court previously indicated that there might be situations when “necessity” can be a proper legal justification for speeding, the appellate court’s limited function as an “error-correcting court” constrained it from spelling out those situations.
In mid-afternoon March 13, 2012, Wisconsin State Trooper Daniel Breeser clocked a car going 92 mph eastbound on Highway 18, outside of Prairie Du Chien.
The driver, Tammy Camden, admitted she was speeding, but was trying to get away from a vehicle that had been stalking her since leaving town.
Camden told the officer that the vehicle would mimic her own movements. When Camden put on her turn signal, the other car would signal. When Camden moved to pull over, the unknown car would too.
At that point she had to speed up, Camden said, and she told Breeser that she “just needed to get away” from the vehicle behind her and was trying to get to her home in Linden.
Although she allegedly had been playing cat-and-mouse with the vehicle since leaving Prairie Du Chien, Camden could give no more specific description of the car or its driver.
At trial, Breeser testified that there was no other car behind Camden when she was pulled over and ticketed.
Circuit Court Judge Craig Day allowed Camden to present a defense of necessity and, after a contested hearing, found that she legally was justified in speeding. He dismissed the speeding charges.
The state appealed, indicating that speeding is a strict liability offense, and drivers are not permitted to pick and choose those instances when it was “justified” to speed.
The state pointed to the 1982 Wisconsin Supreme Court case of State v. Brown, 107 Wis.2d 44, which slightly opened the door to legal justification for speeding.
In Brown, the Supreme Court found the driver had been speeding. However, because the speeding only occurred because of the actions of a law enforcement officer, the court said that “as a matter of public policy,” the driver legally was justified in exceeding the speed limit.
However, the court did not further clarify what, if any, other situations legally justified speeding, when law enforcement does not “cause” the speeding.
In his concurring opinion in the Brown case, Justice William Callow underscored his strong reservations about creating any other exceptions when speeding was justified legally.
“The traveling public should be able to rely on the absolute requirement that traffic laws must be obeyed,” Callow wrote in his opinion. “The proposition that each driver could selectively evaluate the situation and violate the law with the expectation of impunity is unthinkable.”
Counsel for Camden suggested that the state should not be able to raise the issue of necessity on appeal because they didn’t raise the issue at trial.
The state might have contested the actual defense of necessity, counsel for Camden wrote, “but they never argued that legal justification defense was not available.”
Camden’s counsel also took issue with the state’s interpretation of Brown. To counsel for Camden, Brown did not specifically intend to limit the use of “necessity” exclusively to those instances triggered by police action.
The only way to find out what other circumstances would support a legal justification defense was to present them in court when the facts provided, said counsel for Camden.
The appellate court paid little heed to the Camden allegation of waiver. Brown was applicable, the appellate court ruled, but only insofar as to suggest that the Supreme Court would best decide which circumstances could support a finding of necessity.
In Wisconsin, the court explained, the appellate court‘s primary role is error-correcting. Consequently, it was an error to allow the trial court to extend the “legal justification” defense in Brown to cases other than those in which law enforcement officers are involved.
That type of “law developing” decision would have to come from the Supreme Court itself, the appellate court concluded, thereby reversing the circuit court’s decision.