Necessity: Defense in Criminal and Civil Cases

Necessity as a legal defense in either criminal or civil cases presents challenges.

Why? Let’s look at one actual case.

Ken and his girlfriend Heather drank a few adult beverages.  Heather fell and started bleeding profusely. This happened in a remote area, without cell or other phones. Ken put Heather in the car and rushed to the hospital. On arrival, doctors attended to Heather. But, police followed the car and arrested Ken for drunk driving.

Can we fight the DWI charge with the defense of necessity, claiming there was no choice but to drive while intoxicated to save a life?

Elements of Necessity

Those asserting the necessity defense must prove three things:

1. They acted to avoid a significant risk of harm;
2. No adequate lawful means could have been used to escape the harm;
3. The harm avoided was greater than that caused by breaking the law.

Necessity Cases

In a case with facts similar to those above, the Massachusetts Supreme Judicial Court rejected the necessity defense. In Commonwealth v. Kendall, a 2008 case, the court held that the defendant failed to show there weren’t alternatives, such as seeking help from a nearby fire station or even a Chinese restaurant with a phone.

The necessity defense was also rejected when a man drove after his license was revoked for being a habitual offender. He drove a co-worker to the hospital for treatment of a twisted ankle. In the New Hampshire case of State v. O’Brien the court held that illegal actions are not justified even if carried out with good intentions under the competing harms doctrine.

Federal Law

Federal law does not provide a defense of necessity by statute. But, the U.S. Supreme Court has noted that necessity is rooted in common law state-by-state, and that a necessity defense:

“traditionally covered the situation where physical forces beyond the actor’s control rendered illegal conduct the lesser of two evils.”

In a 1986 British case, reckless driving charges were thrown out on a necessity defense when the driver pointed out he was driving away from an angry mob threatening to do him harm. Marijuana growers claiming medical necessity have at times succeeded with this defense, sometimes only temporarily, until appeals courts reversed their victories.

Necessity: Civil and Criminal Concept

Both criminal and civil defendants assert the necessity defense, claiming they had no choice but to break the law. Necessity is sometimes used successfully in cases involving trespass on property to save a person’s life or property. A California jury form asks jurors to decide whether it appeared reasonably necessary to enter the land to prevent serious harm to person or property.

The rationale holds that in some cases a technical breach of the law is more advantageous to society than strict adherence to the law. Courts and jurors tend not to favor necessity. So, it’s probably a good idea to have a back-up theory.

Necessity is one of those defenses that insurance companies will throw into the mix in answering a personal injury complaint. But, as seen above, this theory often fails. Anyone injured in an accident should hire an experienced personal injury attorney to push back. My office handles injury and accident claims in Massachusetts and New Hampshire.

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