A Northport woman concedes that late one night last October, she got behind the wheel of a car she didn't own with more than twice the legal limit of alcohol in her system and turned the wrong way down a one-way street in Westbury.
Yet in a nonjury trial under way now before Judge George Peck in Mineola, Donna Powell, 48, hopes to be acquitted of drunken driving charges because the mother of three says she had no choice but to drive drunk that night.
Powell testified that seconds before she got behind the wheel, the car's owner, whom she had met at a bar earlier that night, pulled into an empty lot and tried to assault her. When he got out for a moment, she said she jumped behind the wheel and drove away.
"I started to get scared," Powell said last week when she testified in her own defense.
Under New York law, a person is justified in committing a crime if by doing so she avoids a harm that is worse than the one she causes, legal experts said. For example, a person would be justified in stealing a fire extinguisher if it allowed her to put out a fire that threatened to burn down out a house full of people, said Rachel Barkow, who teaches criminal law at New York University School of Law.
However, it must be clear that the danger was imminent, and that the person did not cause the harm that she stopped. In Barkow's example, that would mean that the person who steals the fire extinguisher could not have set the fire that she later put out.
In Powell's case, she said she had left a Northport bar with a man she had just met, thinking she was accompanying him on an errand. But then Powell said in court that the man, whom prosecutors will not name until he testifies later this week, told her he was going to buy crack. After he stopped to meet someone, he took her to an empty lot, where Powell said he groped her and tried to pull her out of the car.
Prosecutors say Powell's claim is not credible. When a police officer finally pulled her over, she didn't mention the assault.
Powell said in court she was afraid and "just wanted to forget it happened."
But Maureen McCormick, who heads the vehicular crimes unit for Nassau District Attorney Kathleen Rice, said what more likely happened is that Powell, who has a prior drunken driving conviction in Suffolk County, got spooked after her husband called her on her cell phone.
Michael Cahill, a criminal law professor at Brooklyn Law School, said it will be difficult to prove that Powell was in imminent danger of assault. He said it's also tough to say that the harm of drunken driving is clearly less serious than the harm of being assaulted. While Powell didn't hurt anyone that night, she clearly could have, Cahill said.
With Kathleen Kerr