Duress or Necessity


SHORSTEIN, LASNETSKI, & GIHON
explains the
Duress or Necessity
defense.
The Duress or Necessity defense arises when a person commits an offense when they felt they had no choice but to commit it.  For example, committing a DUI when you were fleeing from danger and the only reasonable option was to drive while impaired.  This defense should be raised in very limited circumstances where the evidence supports it. 

What is the Duress or Necessity defense?

It is a defense to a criminal charge if you acted out of duress or necessity.  In order to establish the duress or necessity defense, the jury must find:
  • You reasonably believed a danger or emergency existed which was not intentionally caused by you, and
  • the danger or emergency threatened significant harm to yourself or a third person, or
  • the danger or emergency threatened death or serious bodily injury, and
  • the threatened harm must have been real, imminent, and impending, and
  • you had no reasonable means to avoid the danger or emergency except by committing the crime, and
  • the offense must have been committed out of duress or necessity to avoid the danger or emergency, and
  • the harm that you avoided must outweigh the harm caused by committing the offense.

What does "imminent and impending" mean?

"Imminent and impending" means the danger or emergency is about to take place and cannot be avoided by using other means.  A threat of future harm is not sufficient to prove this defense.  Nor can the defendant use the defense of duress or necessity if you committed the crime after the danger from the threatened harm had passed. 


What if I drove drunk to get away from a dangerous situation, like a violent boyfriend or husband?

This is a classic case where a necessity defense may be a viable defense.  The issue will be what the perceived and imminent danger was to you and what your other options were to get away from the danger.  So if you are stopped by the police and your friend, who hasn't been drinking, is in the passenger seat, the necessity defense may not work, because your friend could have driven to get away from the danger.  If you lived next door to a police officer who was home, the necessity defense may not work because you could have avoided the danger without committing the offense of DUI by walking next door.  The specific facts are crucial in a duress or necessity case.


What if I thought I was in danger, but it turns out that I wasn't?

The actual danger need not be real for you to use the duress or necessity defense.  However, the appearance of the danger or emergency must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger or emergency could only be avoided by committing the offense.  Also, you must have actually believed that the danger or emergency was real. 

How do I show that I was acting out of duress or necessity?

If the jury has a reasonable doubt as to whether you committed the offense, they must find you not guilty.  You would establish the duress or necessity defense through evidence, including witnesses, your own testimony, and any supporting or corroborating evidence that is available. 

Can I use the duress defense if I'm charged with attempted murder or murder?

No.  Duress is not a defense to premeditated or attempted premeditated murder. 

If you or a loved one is charged with a criminal offense and you think you have a
Duress or Necessity
defense,

Call Shorstein, Lasnetski & Gihon Now!

904-642-3332 (Jacksonville)
 
or

407-228-2019
(Orlando). 

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