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

On Dec. 30, 2017, Jared Nikle was found asleep in the driver’s seat of his car in Fargo with the engine running, headlights on, and evidence of intoxication; an Intoxilyzer showed a result 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.
Before trial Nikle requested a jury instruction on the common-law affirmative defense of necessity; the City opposed the instruction.
The district court denied the requested necessity instruction as unsupported by North Dakota law; Nikle waived a jury trial (reserving the right to appeal the instruction ruling) and proceeded on stipulated facts.
The district court convicted Nikle; on appeal he argued the court erred by refusing to submit the necessity defense to the jury.
The Supreme Court of North Dakota affirmed, holding Nikle failed to present evidence sufficient to raise the affirmative defense (in particular, he did not show no lawful alternatives existed).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court erred by refusing to instruct the jury on the affirmative defense of necessity	City: Necessity is not recognized/appropriate here and no evidence supports it	Nikle: Necessity excuses the charge and should be submitted to the jury	Court: No error — even if necessity existed in ND, Nikle failed to prove required elements (no legal alternatives)
Whether the ordinance offense requires culpability	City: Ordinance incorporates ch. 39-08, which is strict liability	Nikle: (implicit) necessity could excuse despite strict liability	Court: The offense is equivalent to N.D.C.C. § 39-08-01, treated as strict liability; necessity does not negate elements but is an affirmative policy-based excuse
Burden to obtain affirmative-defense instruction	City: Proponent must present evidence by preponderance to warrant instruction	Nikle: He satisfied factual basis via stipulation	Court: Proponent bears burden; stipulations did not show absence of legal alternatives, so instruction not warranted
Whether defendant’s situation was a non‑fault emergency justifying necessity	City: Defendant created or could have avoided the situation; alternatives existed	Nikle: He needed to keep engine running to charge phone and wait for ride; imminent harm prevented alternatives	Court: Record did not show he tried alternatives or that alternatives were unavailable; analogous cases deny necessity where options existed

State v. Zajac, 767 N.W.2d 825 (N.D. 2009) (standard for reviewing jury instructions)
Lehman v. [State], 785 N.W.2d 204 (N.D. 2010) (court considers evidence in light most favorable to defendant when deciding whether to give an instruction)
State v. Holte, 631 N.W.2d 595 (N.D. 2001) (proponent of affirmative defense must bear burden by preponderance to obtain instruction)
State v. Michlitsch, 438 N.W.2d 175 (N.D. 1989) (distinguishing affirmative defenses from negating elements)
State v. Montplaisir, 869 N.W.2d 435 (N.D. 2015) (N.D.C.C. § 39-08-01 treated as strict liability offense)
State v. Sahr, 470 N.W.2d 185 (N.D. 1991) (observing necessity has not been recognized as a general justification in North Dakota)
State v. Nelson, 36 P.3d 405 (Mont. 2001) (necessity inapplicable where alternatives existed and situation was self-created)
Commonwealth v. Kendall, 883 N.E.2d 269 (Mass. 2008) (insufficient evidence of efforts to seek lawful alternatives defeats necessity defense)