City of Fargo v. Nikle, 924 N.W.2d 388

Background

On Dec. 30, 2017, Jared Nikle was found asleep in the driver’s seat of his running car after consuming alcohol; Intoxilyzer results were above the legal limit.
Nikle was charged under Fargo Municipal Code § 08-0310 (incorporating N.D.C.C. ch. 39-08) for actual physical control while under the influence.
Nikle sought a jury instruction on the common-law affirmative defense of necessity; the City opposed the instruction.
The district court denied the necessity instruction as not supported by North Dakota law; Nikle waived a jury trial but reserved the right to appeal that denial and proceeded on stipulated facts.
The court convicted Nikle; on appeal he argued the court erred by refusing the necessity instruction.
The Supreme Court affirmed, holding Nikle failed to meet the burden to justify an affirmative-defense instruction even assuming necessity were available in North Dakota.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court erred by refusing to instruct jury on necessity	City: Necessity is not recognized/supportable under ND law and instruction was inapplicable	Nikle: Necessity should be given; he acted to prevent greater harm and must only meet preponderance standard	Court: No error—Nikle failed to produce evidence on required elements (esp. no showing of lack of legal alternatives); denial affirmed
Whether necessity is recognized in North Dakota	City: North Dakota has not recognized a broad common-law necessity defense	Nikle: Prior cases haven’t expressly rejected necessity; court should permit instruction	Court: Declined to decide the general question because facts failed to support the defense; noted ND hasn’t codified/recognized broad necessity
Whether actual physical control/DUI requires culpability	City: Ordinance and N.D.C.C. ch. 39-08 impose strict liability; no mens rea required	Nikle: (implicit) necessity could excuse conduct even if strict liability	Court: Confirmed § 39-08-01 is strict liability; necessity would be an affirmative policy-based excuse, not an element-negating defense
Whether defendant met his burden to obtain an affirmative-defense instruction	City: Stipulated facts show alternatives existed and evidence is lacking	Nikle: Argued waiting in running car to charge phone and keep warm was necessary	Held: Nikle failed to show lack of legal alternatives or that the emergency was not self-created; instruction properly denied

Key Cases Cited

State v. Zajac, 767 N.W.2d 825 (N.D. 2009) (standard for reviewing jury instructions)
State v. Lehman, 785 N.W.2d 204 (N.D. 2010) (instructing when evidence viewed in defendant's favor)
State v. Montplaisir, 869 N.W.2d 435 (N.D. 2015) (N.D.C.C. § 39-08-01 is a strict liability offense)
State v. Sahr, 470 N.W.2d 185 (N.D. 1991) (noting necessity has not been recognized by the court)
State v. Nelson, 36 P.3d 405 (Mont. 2001) (necessity inapplicable where defendant had legal alternatives and created predicament)
Commonwealth v. Kendall, 883 N.E.2d 269 (Mass. 2008) (insufficient evidence of lack of alternatives to support necessity defense)