concurring.
[¶ 16] I concur in the opinion of the Court concluding that the trial court properly ruled that the competing harms justification was not generated by the evidence. I write separately, however, to address the meaning and importance to the analysis of Caswell’s stop at the Irving station.
[¶ 17] On the night in question, Caswell’s driving must be seen as occurring in two separate components: first, when she fled her attacker’s residence, after she had been sexually assaulted, and second, when she left the Irving station, after she had stopped for cigarettes.
[¶ 18] In the first instance, Caswell was presented with only two viable alternatives. She could remain in the presence of her attacker in an isolated rural setting, or she could violate the law by driving away from the attacker while she was under the influence of alcohol. She presented evidence that he had, in fact, raped her, that he had followed her and prevented her from escaping previously that same night, and that she was subjectively terrified that he might attack her again. She also presented evidence that she was alone with him in a relatively isolated setting and that there were no alternative transportation options available to her.
[¶ 19] If we accept Caswell’s testimony on these facts, which we must for purposes *380of this analysis, we would have to conclude that she presented all of the elements necessary to generate the competing harms defense, had she been stopped'while driving away from her attacker. 17-A M.R.S.A. § 103(1) (1983).
[¶ 20] Because she was not stopped at that point, however, the analysis does not end there. When Caswell arrived at the Irving station, the facts supporting her competing harms defense changed significantly. She was no longer faced with an impossible situation, where she had to decide between staying with the man who had just sexually assaulted her, or fleeing from her attacker by driving under the influence. By the time she had reached the Irving station, Caswell was away from her attacker’s presence, in a public place, and in the presence of other people, including two uniformed police officers. At the same time, there was no evidence whatsoever that her attacker had, in fact, followed her. Moreover, once she reached the public area of the Irving station, she also had alternative methods of getting home.4
[¶ 21] When she chose, instead, to get back into her truck and drive home under the influence, she did so without the justification that initially existed when she left her attacker’s trailer. In other words, she was no longer in the isolated setting where her only reasonable option was to violate the law. A defense that is valid initially may be lost by a change in circumstances. See United States v. Bailey, 444 U.S. 394, 412-13, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980);5 see also LaFave & Scott, Substantive Criminal Law 619-20 (1986 & Supp. 2001).
[¶ 22] Furthermore, Dr. Rines’s testimony does not fill in the gap created by the absence of any objective facts to support Caswell’s belief that she was imminently threatened with physical harm when she left the gas station. See State v. Poole, 568 A.2d 830, 831-32 (Me.1990). Caswell’s subjective belief that she was under an imminent threat of physical harm, no matter how reasonable for someone in her condition, was not sufficient to generate the defense unless it was accompanied by objective facts supporting her fear. See State v. Kee, 398 A.2d 384, 385-86 (Me. 1979). At best, Dr. Rines’s testimony, if accepted by the jury, would have demonstrated that Caswell’s subjective fear was a natural by-product of the trauma inflicted on her by her attacker and that her actions were consistent with the actions of those who have just experienced sexual trauma. That evidence, although possibly bolstering the credibility of Caswell’s testimony that she had, in fact, been sexually assaulted on the night in question, would not have provided the jury with any objective facts regarding the presence of a continuing threat from her attacker, or the absence of an alternative to driving herself home from the Irving station.
[¶ 23] Therefore, Dr. Rines’s proffered testimony that Caswell felt compelled to drive home and was not thinking rationally would have provided the jury with two primary pieces of evidence. First, it could have provided evidence of the strength of her subjective belief that she was being *381followed and at risk of physical harm, and second, it could have been understood to demonstrate that Caswell had not formed the intent to drive under the influence. Intent is not, however, an element of the crime of operating under the influence. Because a charge of OUI does not contain a mens rea element, Caswell’s state of mind was irrelevant. See Poole, 568 A.2d at 832.
[¶ 24] Ultimately, Dr. Rines’s testimony, no matter how compelling in its explanation of Caswell’s emotional state, would not have been sufficient to demonstrate an objective threat of harm to Caswell or the objective lack of a legal alternative to drunk driving. See id. at 831; State v. Moore, 577 A.2d 348, 350 (Me.1990). Thus, the court did not err in excluding Dr. Rines’s testimony or in declining to instruct the jury on the defense of competing harms.
[¶ 25] Accordingly, I join the Court in affirming the judgment of the Superior Court.
. She could have, for example, called a taxi to take her home.
. The United States Supreme Court in Bailey held that the defendants who broke out of jail because of repeated beatings by guards were not entitled to have duress or necessity dense go to the jury, because their initial defense was lost when they failed to make a bona fide effort to terminate their unlawful conduct “as soon as the claimed duress or necessity had lost its coercive force.” United States v. Bailey, 444 U.S. 394, 412-13, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980).