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Necessity Defense in Florida

Not all criminal acts are committed with the intention of causing harm to another person’s physical being or property. In some cases, a criminal defendant may decide that committing a criminal offense is the only way to stop serious harm from happening to him- or herself or to others. In cases where there is truly an emergency threatening the health and safety of another person, a defendant may be able to commit an act that is technically a crime yet escape liability for this criminal act by asserting the defense of “necessity.”

Necessity is an Affirmative Defense

The necessity defense is an affirmative defense, meaning that in order to be able to argue this defense at trial the defendant is responsible for producing evidence and/or testimony that shows the defense is applicable. If the defendant is not able to do this, he or she cannot have the judge or jury consider this defense.

Elements of the Necessity Defense

The basic elements of the necessity defense include:

  • The defendant reasonably believed a danger or emergency existed;
  • The defendant did not cause the emergency or danger;
  • The emergency or danger threatened significant harm to the defendant or to another person;
  • The threatened harm was real, imminent, and impending;
  • The defendant did not have any other reasonable and noncriminal methods of avoiding the threatened harm;
  • The defendant committed the criminal act to avoid the threatened harm; and
  • The harm caused by the criminal act was not greater than the harm the defendant sought to avoid.

As one can see, this defense is available in very limited circumstances. The necessity defense is not available if:

  • The defendant’s belief that a danger or emergency existed was not reasonable under the circumstances;
  • The defendant caused or contributed to the existence of the emergency or danger;
  • The emergency or danger was not such that would have resulted in “significant harm” to another;
  • The threatened harm had already passed or was too remote in the future;
  • There were other reasonable methods that the defendant could have taken that were not criminal in nature and that would have avoided the threatened harm;
  • The defendant did not commit the crime with the intention of avoiding the harm; and/or
  • The criminal act resulted in a harm greater than the harm that the defendant sought to avoid.

Using these two lists, a person who goes and kills his or her neighbor because he or she overheard his or her neighbor threatening to “beat up” another person cannot escape responsibility for the murder using the necessity defense. However, a husband who speeds and refuses to stop for police because his pregnant wife is in labor and no ambulances were available may be able to escape liability for fleeing and eluding charges by using the necessity defense.

Help With Your Florida Criminal Charges

If you believe compelling circumstances existed that justify your criminal acts, have your case evaluated by South Florida criminal defense attorney Jeffrey S. Weiner. Mr. Weiner will consider the facts and circumstances of your case and help you understand what, if any, defenses are available to your charges. Contact the law firm of Jeffrey S. Weiner, P.A. today by calling (305) 670-9919 or contacting the firm online.

Jeffrey S. Weiner, P.A., Criminal Defense Attorneys, is located in Miami, Florida and serves the following communities: Alachua County, Gainesville, Orlando, Broward County, Fort Lauderdale, Hollywood, Pembroke Pines, Pompano Beach, Collier County, Naples, Hillsborough County, Tampa, Indian River County, Vero Beach, Lee County, Cape Coral, Fort Myers, North Fort Myers, Manatee County, Sarasota, Marion County, Ocala, Ocklawaha, Miami-Dade County, Hialeah, Homestead, Key Biscayne, Miami, Miami Beach, and North Miami Beach.
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