State v. Miller

*327II. Analysis

In Defendant's sole argument, he contends the trial court erred by refusing to instruct the jury on the defense of necessity when the evidence presented at trial supported giving the instruction. We agree.

A. Case Law

The affirmative defense of necessity is available to defendants charged with driving while under the influence ("DWI"). State v. Hudgins , 167 N.C. App. 705, 710, 606 S.E.2d 443, 447 (2005). As an affirmative defense, "the burden rests upon the defendant to establish this defense, unless it arises out of the State's own evidence, to the satisfaction of the jury." State…