Necessity or Duress Defense in Florida

Florida law provides an important defense if the defendant committed the criminal act out of necessity or duress. As an affirmative defense, even if the defendant admits he committed the criminal act, he might avoid criminally liable because the defense of necessity or duress excuses the crime.

In Florida, the following four elements establish the duress or necessity defense including:

  1. The defendant reasonably believed under the circumstances that an immediate emergency or danger existed which threatened significant harm to the defendant or another person;
  2. The defendant did not intentionally cause the emergency or danger; and
  3. The defendant had no way to avoid the emergency or danger except by committing the crime charged; and
  4. The harm that the defendant sought to avoid by committing the criminal act must outweigh the harm caused by committing the criminal act.

The standard jury instructions for this affirmative defense are found in Instruction 3.6(k).

Attorney for the Necessity or Duress Defense in Tampa, FL

At Sammis Law Firm, our attorneys understand the importance of asserting the necessity or duress defense for cases in the Tampa Bay area, including Hillsborough County, Pasco County, Polk County, Manatee County, Sarasota County, or Pinellas County, FL.

We can help you raise the affirmative defense of Duress or Necessity by showing that:

  • you reasonably believed an emergency existed which was not intentionally caused by you;
  • the emergency threatened harm to you or a third person;
  • the threatened harm must have been real, imminent, and impending;
  • you had no reasonable means to avoid the emergency except by committing the crime;
  • the crime must have been committed out of necessity to avoid the emergency; and
  • the harm that you avoided outweighed the harm caused by committing the crime.

If were arrested for a crime involving the necessity or duress defense in Tampa, St. Petersburg, Clearwater, Bartow, New Port Richey, Dade City, Plant City, or any of the surrounding areas, then contact a criminal defense attorney at Sammis Law Firm.

For more than 10 years our main office has been at the same location in downtown Tampa. We have a second office in New Port Richey, directly across from the West Pasco Judicial Center.

Call (813) 250-0500 today.

Public Policy Considerations Behind the Duress or Necessity Defense

The policy behind the necessity defense is that when a person is in an emergency situation there are circumstances in which the person finds himself confronted with a choice of two evils:

  • committing a criminal offense by the letter of the law with a harmful result or
  • comply with the law but in the process cause an even greater harm.

In that situation, social policy excuses the crime that results from violating the law but avoiding the greater evil. See LaFave Scott, 1 Substantive Criminal Law § 5.4, at 627 (1986).

For example, a person could assert the necessity defense when prosecuted for DUI if the person drove while under the influence of alcohol in an attempt to escape a dangerous domestic battery attack.

Or a person could assert the necessity defense after driving on a suspended license in order to take another person suffering from a heart attack to the hospital for emergency medical treatment.

Another application of the defense has been successfully asserted to excuse a trespass onto another person’s property to put out a fire that would then save another person’s property.

Necessity Defense in Marijuana Cases

In Jenks v. State, 582 So. 2d 676 (Florida 1st DCA 1991), the appellate Court reversed a marijuana cultivation convictions where the defendants showed proof of a medical necessity defense pursuant to Florida Statutes § 2.01 under the following circumstances:

  1. The defendants had no control over the circumstances which required the choice between the lesser of two evils;
  2. No less harmful alternative was available; and
  3. The harm sought to be avoided was less offensive than the criminal acts committed to avoid it.

See also Sowell v. State, 738 So. 2d 333 (Florida 1st DCA 1998)(medical necessity defense available to avoid marijuana conviction under certain circumstances).

This article was last updated on Friday, May 21, 2021.