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254.2 Necessity, Emergency, Choice Of Evils, Competing Harms
254.2.1 Related Doctrines: Competing Harms, Choice Of Evils, Emergency, Necessity
254.2.2 Necessity As Defense To Drunk Driving
254.2.3 Imminent Danger as Defense To Vehicle Violation
254.2.4 Necessity: Homelessness As Defense To Charge Of Vagrancy
254.2.5 Defense Of Emergency
254.2.6 Necessity: Not Applicable To Civil Disobedience
254.2.7 Necessity: Battered Person Syndrome
254.2.8 Necessity: Culture
254.2.9 Necessity As Defense To Escape
254.2.10 Necessity As Defense To Possession Offenses
254.2.11 Necessity As Defense To Marijuana Offenses
254.2.12 Necessity As Defense To Hypodermic Needle Exchange
254.2.13 When The Defendant Is Relying On A Necessity (Choice Of Evils/Emergency) Defense The Jury Should Be Instructed That Motive Is Relevant
254.2.14 Exfelon In Possession Of Firearm: Necessity As Defense
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254.2.1 Related Doctrines: Competing Harms, Choice Of Evils, Emergency, Necessity
PRACTICE NOTE: The necessity defense justifies otherwise criminal conduct when, under extreme circumstances, the harm caused by obeying the letter of the law is greater than the harm caused by breaking the law. (See U.S. v. Bailey (1980) 444 US 394, 409-10 [62 LEd2d 575; 100 SCt 624].) When presented with a choice of two evils, the defendant’s violation of the law may produce less harm than literal adherence to the law. In such cases the defense of necessity may apply. (Ibid.)
The defense of necessity generally requires proof of the following:
1. An honest and reasonable belief that the harm done was necessary to avoid a greater harm
2. No alternative course of action was available
3. The defendant was not a fault in creating the crisis
(See LaFave and Scott, Substantive Criminal Law, §5.4, p. 627 et seq.; Wharton’s Criminal Law, 15th Ed. 1993, § 90.)
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254.2.2 Necessity As Defense To Drunk Driving
RATIONALE: If the defendant is required to drive while intoxicated to prevent a greater evil an instruction on the defense of necessity may be appropriate.
POINTS AND AUTHORITIES: See Toops v. State (IN 1994) 643 NE2d 387, 389 [passenger required to assume control of vehicle when driver jumped into back seat]; see also State v. Cole (SC 1991) 403 SE2d 117, 118 [driving with suspended license]; Gibbons v. State (TX 1994) 874 SW2d 164, 165 [driving while intoxicated to attempt to prevent suicide may support necessity defense]; but see State v. Greer (MO 1994) 879 SW2d 683, 685 [duress instruction not available as to charge of driving while intoxicated where defendant could have remained indoors to escape from assailants]; State v. Daoud (NH 1996) 679 A2d 577, 582 [duress not available where driver had lawful alternatives to driving while intoxicated such as calling a friend or taxi or seeking shelter with neighbor].
See also FORECITE National™ 89.4.4 [Duress As Defense To Drunk Driving].
RESEARCH NOTES:
Reiff, Robert S., Drunk Driving and Related Vehicular Offenses (Lexis, 1999) § 17.4(r), p. 394.
See also generally, FORECITE National™ 305.4.10 [Drunk Driving].
SAMPLE INSTRUCTION # 1:
Necessity is a defense to a charge of driving under the influence of alcohol or drugs if
(1) The defendant reasonably believed that [driving while intoxicated] [driving under the influence of alcohol or drugs] [______________] was necessary to avoid or minimize a harm;
(2) The harm sought to be avoided was greater than the harm resulting from [driving while intoxicated] [driving under the influence of alcohol or drugs] [______________];
(3) The threatened harm was not brought about by the defendant; and
(4) No reasonable [equally effective] legal alternative existed.
This defense must be established by a preponderance of the evidence. Preponderance of the evidence means that you must be persuaded, considering all the evidence in the case, that it is more probably true than not true. Any juror who finds that the defendant has established this defense must vote to return a verdict of not guilty.
[See generally Toops v. State (IN 1994) 643 NE2d 387, 389; State v. Cole (SC 1991) 403 SE2d 117, 118; Gibbons v. State (TX 1994) 874 SW2d 164, 16; see also WASHINGTON PATTERN JURY INSTRUCTIONS - CRIMINAL, WPIC 18.02 [Necessity-Defense] (West, 2nd ed. 1994).]
SAMPLE INSTRUCTION # 2:
A person is not guilty of [driving while intoxicated] [driving under the influence of alcohol or drugs] [______________] if [he] [she] acted out of necessity. The defendant has the burden of proving by a preponderance of the evidence all of the facts necessary to establish the following elements of this defense:
1. The [driving while intoxicated] [driving under the influence of alcohol or drugs] [______________] was done to prevent a significant and imminent evil, namely, [a threat of bodily harm to oneself or another person] [or] [_______________];
2. There was no reasonable legal alternative to [driving while intoxicated] [driving under the influence of alcohol or drugs] [______________];
3. The reasonably foreseeable harm likely to be caused by the [driving while intoxicated] [driving under the influence of alcohol or drugs] [______________] was not disproportionate to the harm avoided;
4. The defendant had a good-faith belief that [his] [her] [driving while intoxicated] [driving under the influence of alcohol or drugs] [______________] was necessary to prevent the greater harm;
5. That belief was objectively reasonable under all the circumstances as they appeared to and were known by the defendant; and
6. The defendant did not substantially contribute to the creation of the emergency.
[See generally Toops v. State (IN 1994) 643 NE2d 387, 389; State v. Cole (SC 1991) 403 SE2d 117, 118; Gibbons v. State (TX 1994) 874 SW2d 164, 16; see also CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 4.43 [Defense Of Necessity-General] (West, 6th Ed. 1996).]
SAMPLE INSTRUCTION #
3:under the circumstances. If you find that the defendant was driving out of necessity, you must vote to return a verdict of not guilty.The defense of necessity is available to the charge of driving under the influence. For the defendant to prevail on the defense of necessity, you must be convinced that it was necessary for the defendant to be driving and that his driving was reasonable
ee generally Toops v. State (IN 1994) 643 NE2d 387, 389; State v. Cole (SC 1991) 403 SE2d 117, 118; Gibbons v. State (TX 1994) 874 SW2d 164, 16; see also Ervin’s, SOUTH CAROLINA CRIMINAL JURY INSTRUCTIONS 18.3 [Defense Of Necessity] (South Carolina Bar, 1995).]S
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254.2.3 Imminent Danger As Defense To Vehicle Violation
See FORECITE National™ 254.1.5.1 [Imminent Danger As Defense To Vehicle Violation].
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254.2.4 Necessity: Homelessness As Defense To Charge Of Vagrancy
PRACTICE NOTE: In In re Eichorn (CA 1998) 69 CA4th 382 [81 CR2d 535], there was substantial if not uncontradicted evidence that defendant slept in the civic center because his alternatives were inadequate and economic forces were primarily to blame for his predicament. The reviewing court held that the trial court erred in failing to instruct on necessity noting that this error was "clear, fundamental, and struck at the heart of the trial process." (Eichorn, 69 CA4th at 390.)
See generally FORECITE National™ Chapter 250 [Defenses And Defense Theories: General Issues].
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254.2.5 Defense Of Emergency
PRACTICE NOTE: In some jurisdictions the defense of emergency, which is similar to the defense of necessity as described in other jurisdictions, is available. (See e.g., (MISSOURI APPROVED INSTRUCTIONS - CRIMINAL, MAI-CR 3d 308.20 [Justification: Emergency Measures] (Missouri Supreme Court Publications, 3rd ed. 1987).) The defense has been recognized in the context of escape (see State v. Kirkland (MO 1984) 684 SW2d 402, 405-06) and trespass (see State v. Diener (MO 1986) 706 SW2d 582, 585).
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254.2.6 Necessity: Not Applicable To Civil Disobedience
PRACTICE NOTE: See U.S. v. Springer (9th Cir. 1995) 51 F3d 861, 866.
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254.2.7 Necessity: Battered Person Syndrome
See FORECITE National™ 256.1 [Battered Person’s Syndrome].
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254.2.8 Necessity: Culture
See FORECITE National™ 250.8 [Cultural Background As Relevant To Defense Theories].
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254.2.9 Necessity As Defense To Escape
See FORECITE National™ 91.4 [Escape: Necessity/Choice Of Evils, Duress/Coercion/Compulsion As Defense Theory].
RESEARCH NOTES:
See generally, FORECITE National™ 305.5.7 [Escape].
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254.2.10 Necessity As Defense To Possession Offenses
See FORECITE National™ 56.3.3 [Necessary Or Justified Possession].
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254.2.11 Necessity As Defense To Marijuana Offenses
See FORECITE National™ 88.2 [Drugs, Controlled Substances: Medical Necessity As Defense Theory].
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254.2.12 Necessity As Defense To Hypodermic Needle Exchange
RATIONALE: If a needle exchange is actually intended to prevent a greater harm a necessity instruction may be appropriate.
POINTS AND AUTHORITIES: It has been recognized that medical necessity may be a defense in the trial of needle exchange activists. (See e.g., People v. Bordowitz (NY 1991) 588 NYS2d 507, 511 [defendants presented valid medical necessity defense to charge of possessing hypodermics where defendants believed handing out clean needles would prevent spread of HIV (human immunodeficiency virus) and AIDS (acquired immune deficiency syndrome) infection among drug addicts, medical evidence demonstrated that needle exchange programs have proven successful, the harm defendants sought to avoid was greater than harm in violating hypodermic possession statute, and an insufficient number of drug programs existed for addicts]; see also Spokane County Health Dist. v. Brockett (WA 1992) 839 P2d 324, 328-29 [needle exchange program adopted by county health district in effort to halt spread of AIDS (acquired immune deficiency syndrome) was valid public health measure, implementation of which would not subject district officials to criminal liability for unauthorized distribution of drug paraphernalia, though sterilized needles that district officials provided to intravenous drug users would almost certainly be used in administering illegal drugs]; Halem v. Superior Court UNPUBLISHED (A060750) in which the Court of Appeal denied the prosecution's pretrial writ petition seeking to preclude the defense from raising a necessity defense to a needle exchange charge.
FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].
SAMPLE INSTRUCTION:
Necessity is a defense to a charge of unlawful possession of hypodermic needles if:
(1) The defendant reasonably believed the possession of hypodermic needles was necessary to avoid or minimize a harm;
(2) The harm sought to be avoided was greater than the harm resulting from possession of hypodermic needles;
(3) The threatened harm was not brought about by the defendant; and
(4) No reasonable [equally effective] legal alternative existed.
This defense must be established by a preponderance of the evidence. Preponderance of the evidence means that you must be persuaded, considering all the evidence in the case, that it is more probably true than not true. Any juror who finds that the defendant has established this defense must vote to find the defendant not guilty.
[See generally Spokane County Health Dist. v. Brockett (WA 1992) 839 P2d 324, 328-29; see also WASHINGTON PATTERN JURY INSTRUCTIONS - CRIMINAL, WPIC 18.02 [Necessity-Defense] 1998 Pocket Part, p. 63 (West, 2nd ed. 1994).]
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254.2.13 When The Defendant Is Relying On A Necessity (Choice Of Evils/Emergency) Defense The Jury Should Be Instructed That Motive Is Relevant
See FORECITE National™ 250.7.2 [When The Defendant Is Relying On A Necessity (Choice Of Evils/Emergency) Defense The Jury Should Be Instructed That Motive Is Relevant].
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254.2.14 Exfelon In Possession Of Firearm: Necessity As Defense
See FORECITE National™ 107.3.6 [Exfelon In Possession Of Firearm: Necessity As Defense].