The Necessity Defense in Criminal Cases

Criminal CasesLife is filled with difficult decisions. In many situations, people are forced to make tough choices, even when none of their options are all that appealing.

If you committed a crime because you believed you had no other choice at the time, a Miami criminal defense lawyer may be able to argue you broke the law out of necessity. In Florida, necessity is an affirmative defense to criminal charges.

Proving You Acted Out of Necessity

Because necessity is an affirmative defense, the accused has the burden of proving he or she carried out a crime strictly under duress.

When a criminal defendant raises the issue of necessity, he or she must prove all the elements of the necessity defense:

  • The defendant had a reasonable belief that a danger or emergency existed at the time, and the defendant didn’t create the danger or emergency
  • The danger or emergency carried a threat of significant harm to the defendant or another person
  • The threatened harm was real, imminent, and impending
  • The defendant had no way to avoid the threat of harm
  • The defendant committed a crime as a way to avoid the harm
  • The harm the defendant sought to avoid outweighed any harm caused by the crime

Proving you acted under duress isn’t easy, and Florida courts require criminal defendants to give very good reasons for their decision to engage in unlawful conduct.

The necessity defense has been used with mixed results in several noteworthy cases over the years.

1. Driving drunk to escape an abusive spouse. The Minnesota Supreme Court allowed a woman to raise the necessity defense in a drunk driving case. On the night of her arrest, she attempted to sit in her parked car to avoid her husband.

Both spouses had been drinking, which led to an argument. The husband followed her to the car, where he pounded on the windshield hard enough to crack the glass. The wife then drove to a tavern less than a mile away, where she was arrested for driving drunk.

2. Political protest. In early 2016, a group of environmental activists unsuccessfully used the necessity defense to justify blocking train cars transporting crude oil. The five protesters were convicted of misdemeanor trespass, but the judge nevertheless praised their efforts to raise awareness about pollution and climate change.

3. Driving intoxicated to help a sick cat. In Brooks v. State, a Florida appeals court held that the necessity defense can be used in DUI cases. Unfortunately for the defendant, the trial court refused to allow the jury to consider the necessity defense in his case.

On the night of the defendant’s arrest, police stopped him going 84 miles an hour in a 55 mph zone. Officers also observed him swerving across three lanes of traffic to reach an exit ramp. During the stop, the defendant claimed he was transporting a sick cat to the emergency vet.

The defendant fully admitted he had been drinking, and the police confirmed he was indeed transporting a sick cat at the time of the stop, but the court held that the threat of harm a defendant is trying to avoid must apply to the defendant or to another person. In other words, animals don’t count. Sadly, the cat died shortly after the traffic stop.

Criminal Cases: Contact a Criminal Defense Lawyer

If you are facing prosecution, your criminal cases is not hopeless. There are many defenses to criminal charges.

To increase your chances of a favorable outcome, don’t wait to contact a Miami criminal defense lawyer. The sooner you get an experienced lawyer on your side, the sooner you can start getting your life back.

Author: M. G. Hansen

Marcia Giordano Hansen has been practicing law for almost 20 years. During this time, she has worked for the government at the Miami Dade Public Defender’s office representing indigent clients accused for state criminal offense; for an insurance defense firm wherein she represented doctors sued for medical malpractice and entities sued for negligence; and for a private white collar criminal defense firm practicing white collar crime defending individuals accused of social security fraud, Medicare fraud, drug trafficking and other federal crimes. Her wide range of knowledge in these different areas of law, coupled with the teachings of some of the most well respected legal minds in the country gives her a unique skill set which has benefited all of her clients resulting in victory and success in each case she has handled. Mrs. Hansen, in her own practice, has handled criminal defense cases, personal injury cases and real estate disputes. She speaks Spanish, French and is proficient in Italian which enables her to represent clients from all over the world. She is dedicated to the growth and success of Hansen & Taylor and prides herself in giving VIP treatment to each and every client. Marcia lives in Coral Gables with her husband and daughter. She is an avid sports fan, an animal lover and political junkie. She is also a supporter and member of the Board of Executive Relations for the Special Olympics of Miami, an organization dedicated to the well being of children and adults with disabilities.

What Past Clients Say

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I met with several attorneys and I didn’t feel comfortable with any. Marcia walked me through the process and explained everything to me in detail. She was clear and very communicative throughout the ordeal. I recommend Marcia to anyone going through any type of criminal / legal matters.

Jose Martinez 5 March 4, 2019

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The Hansen Law Firm is a reliable law firm that I absolutely recommend. Marcia Hansen is an experienced, smart lawyer who uses a user friendly portal, which I can access anytime and see any updates regarding my case. She is also always available and quick to respond with any questions I may have.

Diego Fernandez 5 March 4, 2019

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Marcia was always available to assist me with my concerns. She laid out a strategy that resulted in to best possible outcome for our team.

kevin 5 March 4, 2019

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Marcia is a class act!!! I approached her when my cousin ran into trouble. He was facing 12 years of jail time. After her very thorough review of the case (expert witnesses, speaking with the prosecution, review of the evidence), he was released on time served with 2 years of house arrest. Needless to say, she is a true professional. Working with an experienced criminal defense attorney who has a heart is a rarity. She encompasses both. She is hardcore and sweet. I highly recommend her services. Praise God that my cousin has his life back on track and is making very sound decisions. He simply needed a second chance. Since then, Marcia has helped some of my clients who were erroneously being investigated. The client recently told me her fee was the best money he’s ever spent. He’s in the clear and his family can sleep at night. God bless her!!! She is the best.

S Berm 5 March 4, 2019

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Excellent experience with Marcia Hansen ,and the best results for our family ,we are so grateful for her work and kindness with us . I will recommend Marcia 100% .Thanks The Hansen Law Firm

KAB Badell 5 March 4, 2019


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