LINCOLN — A bright light on a dark night attracts more than just moths.
On an August night in 2011, Donald Tjaden fell asleep in front of the TV at his home in rural Madrid, Neb. Sometime after midnight, his girlfriend woke him because cattle in an adjacent pasture were bawling.
Tjaden stepped outside and saw a light along a normally dark stretch of Highway 23 in southwest Nebraska. Figuring it was an accident, he drove less than a mile down a gravel road to the highway intersection to see if anyone needed help.
He soon realized he'd driven into a police checkpoint.
Suddenly Tjaden needed help — as in legal.
He had forgotten his wallet, so he had no driver's license or proof of insurance. Nor had he bothered to remove the loaded shotgun from his pickup.
As he tried to explain to a state trooper, he slurred his words. He'd been drinking earlier at a street dance in Madrid. That he'd gotten a ride home with a designated driver didn't much matter as he blew a .231.
Talk about a dumb luck DUI.
Regardless, the Nebraska Court of Appeals on Tuesday rejected Tjaden's request for a new trial.
Tjaden never denied that he was intoxicated. But he argued that driving a short distance on a gravel road to what he thought was an accident was a lesser evil than ignoring a possible life-or-death emergency.
Nebraska law allows defendants to make what is called the “choice of lesser harm” defense. At Tjaden's trial, however, a county judge refused to instruct a jury to consider the defense. The jury convicted Tjaden of six counts, all misdemeanors and infractions. He was fined nearly $1,500. A district judge upheld the conviction, as did the Appeals Court.
Now Tjaden must decide whether he wants to appeal to the Nebraska Supreme Court, said his attorney, James Paloucek of North Platte.
Paloucek said Tuesday that he was unable to find another Nebraska case in which the choice of evils defense got anyone off the hook, although it has in other states.
“We're scratching our heads and thinking if that lesser of two harms law means anything, it should apply here,” Paloucek said.
Chief Judge Everett Inbody, writing for the Appeals Court, said the defendant must show that his illegal action was necessary to avoid a greater and “immediately imminent harm.” And the defendant's action must be the least harmful alternative.
“Even if we accept Tjaden's version of the facts, Tjaden was not faced with any threat of a specific and immediately imminent harm when he drove under the influence,” the judge wrote.
The judges also said Tjaden could have opted for a less harmful alternative of calling 911, which he did not do.
Nebraska Attorney General Jon Bruning defended the state in the appeal. Shannon Kingery, Bruning's spokeswoman, said Tuesday that the office was pleased with the court's decision.
For now, Tjaden, 59, has to live with the idea that his intended good deed was punished. “But for the law enforcement folks out there with this checkpoint, he would have slept the night away,” Paloucek said.