With no explanation, chose the best option from "A", "B", "C" or "D". 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,

A: holding if defendant meets evidentiary threshold in assertion of affirmative defense he is entitled to a jury instruction on necessity in dui ease
B: holding that laches is an affirmative defense
C: holding that fair use is an affirmative defense
D: 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
A.