Yenter was convicted of OWI and driving with a PAC, both as first offenses. He wanted to argue that he had no choice but to drive drunk because he and his passengers had fled a fight in a rural area. The perpetrators chased them to his car and threw rocks at it, leaving them no time to decide who should drive. Yenter had the keys. They jumped into his car and he drove for 16 miles–until police stopped him.
“A threat by a person other than the actor’s coconspirator which causes the actor reasonably to believe that his or her act is the only means of preventing death or great bodily harm to the actor or another and which causes him or her to so act is a defense to a prosecution for any crime based on that act . . .Wis. Stat. §939.46(1).
The court of appeals assumed, but did not decide, that §939.46(1) applied even when the threat is made by someone who is not a state actor. Opinion ¶6. It affirmed the circuit court’s decision not to submit the coercion defense to the jury because even if Yenter believed that driving himself was the only way to avoid bodily harm, he did not demonstrate that his only reasonable option was to continue driving all the way to his house. He could have stopped at a public place, stopped at a farmhouse and called police or stopped and let one of his sober passengers drive. Opinion ¶13-14.
¶15 The record easily supports these conclusions. In particular, as the circuit court plainly understood, Yenter’s offer of proof did not indicate that Yenter was continuously followed or that he was being followed at all when he bypassed public places. Moreover, Yenter offers no plausible reason for why he would be safer attempting to enter his house than seeking safety in a public place with witnesses. Yenter seemingly assumes, without saying so in his offer of proof, that at his house he could lock out the people who might be following him and that he could not similarly lock out such threatening people at a public place. This is simply not a reasonable view of the situation. Even if we were to assume that Yenter was being closely followed by people who wanted to harm him all of the distance to his house, nothing in Yenter’s offer of proof explains what it was about his house that would have allowed him to actually get inside before being accosted, or why the same people who he feared would bust the window of his car to get at him would not similarly bust the window of his house to gain entry.
Regarding the court of appeals’ “state actor” comment . . . this was prosecution for OWI/PAC first. Coercion is a defense to a crime. The State argued that a defendant may assert a coercion defense in a civil forfeiture action for speeding where the “threat” was caused by the arresting officer. See State v. Brown, 107 Wis. 2d 44, 310 N.W.2d 370 (1982). However, it expressly declined to decide whether the defendant could assert the defense in a civil forfeiture case whether the threat was caused by someone or something other than law enforcement.