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Necessity Defense

A defendant may use the defense of necessity against a criminal charge if the defendant reasonably believed that his or her criminal actions were necessary to avoid a greater harm that otherwise would have occurred if the defendant did not commit the crime (CalCrim No. 3403)


For example, if the defendant broke into a pharmacy at night to gain access to medicine which was immediately needed to save another person's life, then the defendant may claim the defense of necessity to a charge of burglary or theft.

Objective Reasonableness: The defense of necessity is only valid if the defendant acted subjectively genuine and objectively reasonable when he believed he needed to commit the crime. This means that the defendant must have truly believed a situation existed where she needed to commit a crime in order to avoid a greater harm (subjective test) and that the average person in the same or similar circumstances would have believed the same (objective test).

Greater Harm Avoided: For a necessity defense to be valid the harm which was avoided when the defendant committed the offense must have been a substantially greater harm than the offense that was committed. For example, the defense of necessity will not apply if the defendant committed the crime of residential burglary in order to obtain basic cold medicine for his son because the crime of residential burglary can lead to a much greater danger than the danger that exists for the defendant’s son due to a common cold.

Note: What is considered to be a substantially greater harm avoided is determined on a case by case basis; however, the harm that is sought to be avoided when the defendant committed an offense must include the threat of great bodily injury, death, or perhaps severe financial loss (See Significant Evil Required below). Also, the defense of necessity does not require a showing that the harm sought to be avoided was actually avoided. The defense only requires that the defendant truly and reasonably believed that the crime he committed was necessary to avoid a greater and significant harm which was not created by his own conduct.

Significant Evil Required: The defense of necessity only applies in cases where the defendant is attempting to thwart a significant evil. The term significant evil is legal term that can cause confusion; however, essentially, the term means that the defense of necessity does not apply to cases where the defendant commits a crime in order to thwart ordinary injury or minor property loss. For example, the defendant of necessity will not likely apply to a defendant charged with a theft crime after he takes another person’s car keys so that the driver will not drive with a suspended license. On the other hand, the defense would probably apply to allow the defendant to take another person’s car keys if the other person is about to drive drunk. This is because driving with a suspended license is not a crime significantly more evil than theft, but DUI is probably considered to be significantly more evil than theft as drunk driving can easily lead to great bodily injury or death.

No Adequate Alternative: To use the necessity defense the defendant will be required to show that his criminal conduct was the best choice under the circumstances. For example, the defendant cannot use the defense of necessity against a reckless driving charge when he drives recklessly to his house because his wife is at home and having a baby. The defendant in this situation could have avoided the reckless driving by calling the police or an ambulance to reach his wife. Of course, the circumstances of every case are different and whether or not the defendant made the best choice to avoid a greater harm in any situation is determined on a case by case basis.

Imminent Harm Required: For a necessity defense to be valid the harm avoided must have been an imminent or immediate harm. For example, the defense of necessity will not apply to a weapons violation charge against a prisoner who keeps a weapon in his prison cell just in case he needs it during a possible future prison riot. This is because there is no immediacy to the prisoner's need in this situation. On the other hand, if the same defendant is engaged in a prison riot and he picks up a weapon dropped by another inmate then the defense of necessity might apply if the defendant truly and reasonably believed the weapon would be used against him or another person if he did not retrieve the weapon.

Note: The defendant may rely on the defense of necessity if the defendant did not create the situation that created a harm to be avoided in the first place. For example, if a prisoner in a prison riot picks up a knife during the riot because he truly and reasonably believes he needs to possess the weapon for his self-defense then the defense of necessity might apply to a criminal charge of prisoner in possession of a weapon. However, if the prisoner started the riot, then the defense of necessity will not apply to absolve him of criminal liability because he created the harm that produced the need for him to possess the knife.

Killing Not Included: The defendant cannot use the defense of necessity to defend against a murder or manslaughter charge where the victim is not directly and imminently threatening anyone with severe bodily injury or death. For example, if a gang member (defendant) kills a store clerk because he believed that if he did not kill the store clerk that other gang members would kill him (the defendant) then the defense of necessity will not apply. This is true even if the defendant truly and reasonably believed he would be killed by other gang members for not killing the store clerk. Of course, if the defendant kills another person, other defenses might apply, such as self-defense or defense of others (depending on the circumstances).

Necessity v. Duress: The defense of necessity and the defense of duress are very similar, but there are differences. One of the biggest differences is that with necessity defense, the defense is available even if no other person coerced the defendant to act. With duress, there is always a person other than the defendant who coerces the defendant into committing a crime, usually by threats of imminent injury or death to the defendant or his family if the defendant does not comply.

Common Usage: The defense of necessity can apply to just about any type of crime committed (except homicide cases). However, in practice, the defense usually applies to non-DUI driving offenses and theft cases. These crimes include: theft (usually for emergency medical supplies), driving without a license, driving with a suspended license, speeding, evading police, unauthorized use of vehicle, driving without insurance, and more.

Affirmative Defense: The defense of necessity is an affirmative defense. This means that the defendant must raise and prove that the defense applies. The defendant must prove the defense of necessity by a preponderance of the evidence, which simply means that the defendant more likely than not needed to commit the crime in order to avoid a greater harm that was not caused by the defendant. The fact that the defendant is burdened with proving a necessity defense does not absolve the district attorney of his duty to prove every element of a criminal charge beyond a reasonable doubt. In fact, the district attorney must prove a criminal charge before the defendant's necessity defense is even considered.

For more information on defenses to crime, including the defense of necessity, contact our criminal defense lawyers today for a free consultation. Our lawyers are experienced and have successfully handled hundreds of misdemeanor and felony cases in San Bernardino County. Our office open seven days a week to assist you and we will patiently explain to your rights and defense options as they apply to any criminal allegations. Call today!


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