To support a necessity or duress defense under Florida Law, there must be sufficient evidence of the following six elements:

  1. The defendant reasonably believed that a danger or emergency existed, which the defendant did not cause;
  2. The danger or emergency threatened significant harm to the defendant or another person;
  3. The threatened harm must have been real, impending, and imminent;
  4. The defendant had no reasonable means to avoid the danger or emergency except by committing the alleged criminal act;
  5. The criminal act was actually committed to avoid the danger or emergency; and
  6. The harm that the defendant sought to avoid outweighed the harm caused by commission of the criminal act.

Under Florida law, “Imminent and impending” means that the danger or emergency was about to take place and could not, under the circumstances, be avoided by taking other reasonable actions. In this regard, a threat of future harm is not sufficient to prove the necessity defense. A defendant is also precluded from raising necessity or duress as a defense where he or she committed the alleged criminal act after the danger from the threatened harm had passed.

The reasonableness of the defendant’s belief that a danger or emergency existed is determined by viewing the evidence presented as a whole. Furthermore, in deciding whether it was necessary for the defendant to commit the charged crime, the jury must judge the defendant by the circumstances by the facts and circumstances surrounding the defendant at the time the crime was committed.

Requirement of Actual Danger or Emergency

Under Florida law, the danger or emergency facing the defendant does not have to be an actual danger or emergency. The first element of the defense is that the defendant “reasonably believed” that such a danger or emergency existed. However, to justify the commission of a criminal act, the appearance of the danger or emergency (under the circumstances faced by the defendant) 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 be avoided only by committing the charged crime. In other words, based upon objective appearances, the defendant must have actually believed that the danger or emergency was real.

Application of the Necessity / Duress Defense

There are innumerable applications of the necessity defense under Florida law. The defense can be raised in virtually any criminal proceeding, regardless of the nature of the charge. If the circumstances necessitated the commission of a crime, and there was no reasonable alternative, and the defendant did not create the situation in which he found himself, then the necessity defense may be available. However, the defendant must meet all elements of the necessity defense discussed above.

Necessity or duress defenses are frequently raised in traffic offense cases. In Williams v. Sirmons, 563, F. Supp. 2d 1315 (M.D. Fla. 2009), a Federal district court, interpreting Florida law, upheld the use of the necessity defense where a pregnant woman, who was in need of urgent medical related to her pregnancy, drove away from a traffic stop in order to avoid imminent harm to her fetus. Similarly, in Bozeman v. State, 714 So. 2d 570 (Fla. 1st DCA 1998), the First District Court of Appeal of Florida held that a defendant in a felony driving with a suspended license case was entitled to the necessity defense where the defendant took the wheel to prevent a drunk driver from causing harm. In that case, the defendant believed he had no viable alternatives to driving since he thought he could get in trouble if he took driver’s keys away and he had no money for a taxicab.

If you have been charged with a criminal offense in Jacksonville or the surrounding counties of Northeast Florida and believe that a necessity or duress defense may apply to you, contact Hussein & Webber, PL to discuss your case. Our consultations are free and confidential.