Fogarty, 128 N.J. 59, 607 A.2d 624 (1992), a New Jersey case on which the State relies, does not support the State’s position. Fogarty equivocates on the legal question here raised and finds instead, as a factual matter, that the defendant failed to present sufficient evidence to establish duress. See id. at 629-30 (finding it unnecessary to reach the question of whether duress was available in DWI cases as “defendant has failed to establish that he acted under duress in this case”). {14} Other courts dealing head-on with this issue have explicitly held that, subject to strict evidentiary requirements, the defense of necessity is permissible. See Pena, 149 Cal.App.3d Supp. 14, 197 Cal.Rptr. at 271-72 (duress is a defense to DWI); Toops v. State, 643 N.E.2d 387, 389-90 (Ind.Ct.App.1994) (<HOLDING>); State v. Shotton, 142 Vt. 558, 458 A.2d 1105,
holding that fair use is an affirmative defense holding if defendant meets evidentiary threshold in assertion of affirmative defense he is entitled to a jury instruction on necessity in dui ease holding that the defendant could not appeal a jury instruction where he did not object to the challenged instruction but in fact requested it and stated he was satisfied with it holding that laches is an affirmative defense holding that unless an affirmative defense is established as matter of law defendant bears burden of obtaining jury findings necessary to support defense