How to beat a pissing ticket: the common law necessity defense
If there are no facilities and the need is absolutely acute...

By Fred R. Staples
Special to Land Line


What does a trucker do when he needs to urinate and there is no facility available? You might carry a container of suitable capacity to provide for your needs. Or you might stop beside the road or on an off-ramp on a freeway and relieve yourself. If a cop happens to observe your activity, you might get an expensive ticket.

In Washington, where I live, a statute (Revised Code of Washington 70.93.060) prohibits littering. RCW 70.93.030(6) defines littering:    

“Litter” means all waste material including but not limited to disposable packages or containers thrown or deposited as herein prohibited and solid waste that is being illegally dumped. … “Litter” includes the material described in subsection (11) of this section as “potentially dangerous litter.”

This section contains a draconian penalty for any trucker who urinates along a highway.

Section 11 provides:

 “Potentially dangerous litter” means litter that is likely to injure a person or cause damage to vehicle or other property. “Potentially dangerous litter” means:

(a) Cigarettes, cigars, or other tobacco products that are capable of starting a fire;
(b) Glass;
(c) A container or other product made predominantly or entirely from glass;
(d) A hypodermic needle or other medical instrument designed to cut or pierce;
(e) Raw human waste, including soiled baby diapers, regardless of whether or not the waste is in a container of any sort; and
(f) Nails or tacks.

The most likely acts that would be subject to this section of the statute are discarding cigarettes or glass, and urination.

RCW 70.93.060(4) provides that it is a Class 1 civil infraction under RCW 7 80.120 to discard potentially dangerous litter in any amount. If it involves “potentially dangerous litter,” e.g., urinating, the maximum fine is $500, although the bail is $1,025. (You can dump a cubic foot of litter on the highway for $50.)

I have investigated a number of cases involving truckers who have urinated on the ground at a DOT weigh station. My interest was piqued when my stepson got a citation at the Tokio weigh station and truck scales on 1-90 in eastern Washington.

The Washington State Patrol has a zero tolerance policy for such conduct. The problem is that some of the scales do not have public toilet facilities available for truckers. Many truckers would assume (and have a legitimate expectation) that these facilities would have toilet facilities for truckers. If they do, they should be used. But if they do not, a trucker who has an immediate need for relief is in a difficult position unless he has the foresight to carry his own container.

In 2008, 343 citations were issued by the  Washington State Patrol for violating this statute. In 2009 through June, 270 were issued. Getting the state patrol to segregate those relating only to urination has not been easy. Most of those were issued at DOT scales. They do not seem to like having truckers urinate on the ground where they have to use crawlers to inspect the trucks, which does not seem particularly unreasonable.

I have contacted many of the truckers who received these citations. The majority of them posted $1,025 bail and forfeited it since many were far from home. This is unfortunate since that maximum fine is $500 and there is a procedure for requesting a “mitigation hearing,” which means you plead guilty and wish to present evidence of a mitigating nature. This can generally be done by mail.

It should also be pointed out that littering is not a traffic violation, in Washington at least, and a person cannot be jailed or lose their driver’s license for failure to pay the fine, as some judges have threatened. The only recourse the court has is to turn the fine over to a collection agency. However, it is a crime to fail to respond to the citation.

As a lawyer and retired superior court judge, I believe there is a meritorious defense to a urinating citation if the urge is sufficiently acute and there is no reasonable alternative other than urinating on the spot.

The common law defense of necessity
There is an ancient and honorable legal principle known as the common law defense of necessity. It is not greatly favored in legal circles and is surrounded by many restrictions.

The principle is usually enunciated as follows:

“Generally, necessity is available as a defense when the physical forces of nature or the pressure of circumstances cause the accused to take unlawful action to avoid a harm, which social policy deems greater than the harm resulting from a violation of the law. The defense is not applicable where the compelling circumstances have been brought about by the accused or where a legal alternative is available to the accused.” W. LaFave & A. Scott, Handbook of Criminal Law 381-83, 386 (1972)

Choice-of-evils justification
In the U.S. there’s what is known as Model Penal Code, Sec. 3.02 and thanks to that law, most states have a necessity or “choice-of-evils” defense on the books, justifying:

1) Conduct which the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable, provided that: (a) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged, and (b) neither the Code nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and (c) a legislative purpose to exclude the justification claimed does not otherwise plainly appear.

2) When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for his conduct the justification afforded by this Section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability.

The common law has long recognized the existence of a defense of necessity. (United States v Holmes, Circuit Court, Eastern District of Pennsylvania, 1842.)

The defense has been used in prison escapes where the prisoner claimed some dire consequences would occur if he did not escape. It is usually unsuccessful because the defendant is required to surrender to other authorities as soon as he gets out, which he rarely does.

It has been used in cases involving drunk driving and driving with license suspended to get someone to a hospital with marginal success, usually because there was another alternative.

It is not available in a murder case because nothing can be more damaging to the actor than the murder he committed. The gunman who killed the abortion doctor, George Tiller, and the defendants in the 9-11 attack are asserting this defense but will most likely find out that defense is futile.

A 1979 Washington Court of Appeals case (State v Diana) – approved the use of the defense in a “medical marijuana” case as necessary to combat a specific disease.

The defense was also successfully used in In Re Eichorn, a 1996 California Court of Appeals case involving homeless people sleeping in a park in violation of an ordinance.

Diligent research has failed to produce any appellate case on using this defense in a case involving urination, but I am convinced it should apply under the proper circumstances, where the defendant had a reasonable expectation there would be facilities at the place where he stopped and his need was acute.

In my stepson’s case, the judge assessed a fine of $512.50 within a day after he requested a mitigation hearing. It is an outrageous violation of the law to summarily impose a fine without a hearing. The case is now on appeal. By mistake, he asked for a mitigation hearing, which is an admission of guilt. The case should be reversed for failure to provide this hearing, and we will ask to change his plea to not guilty and request a trial.

The best defense is to not urinate along a highway, and particularly not on DOT scale’s property. But if you are unlucky enough to get one of these citations, try this defense. It may well work. LL

Editor’s note: This article was written exclusively for Land Line by
Fred R. Staples, attorney and retired superior court judge. He is a resident of Richland, WA.