6 Elements That Must Be Proved In A Necessity Legal Defense

The necessity defense is based on an honest and reasonable belief that you had no choice but to commit a certain crime in order to prevent a greater harm. Our criminal defense lawyers explain that the defense is required to prove six (6) elements to be successful which we outline below.

Elements Of Necessity Defense

One of the less common defenses used in criminal cases is the defense of necessity. It is rarely used because it has many elements that need to be proved by defendants

The necessity defense that you were justified in commiting a crime cannot be used to exonerate you unless all the 6 elements of the defense have been satisfied. But even if you fall short, you may be able to minimize your criminal liability because of extenuating or mitigating circumstances. Unfortunately, your explanation will have to come at sentencing where you will have to convince an often skeptical judge. 

Another aspect of the defense is that each element must be proved by the defendant using the civil standard of preponderance of the evidence, or that it is more likely than not that each of the 6 elements have been proved. However, the prosecution need only show that it was more likely than not that you did not prove any one of the elements in order for a jury to find you guilty. 

Elements of the Defense
  1. You were preventing significant bodily harm or an evil
  2. You had no adequate legal alternative to committing your act
  3. The act did not create an even greater danger or more damage than the one avoided
  4. You possessed an actual belief that your act was necessary to prevent the threatened harm or evil
  5. A reasonable person would also have believed that your act was necessary under the circumstances
  6. You had not created or substantially contributed to the emergency that necessitated your a

You Were Preventing Significant Bodily Harm or Evil

At the time you committed the act, there must have been an emergency situation such as where someone’s life was in peril or at risk of imminent and substantial bodily harm, or that some significant damage would result unless you committed a lesser harm or act to prevent it. 

The emergency situation underlying or justifying your act must have been unforeseen and imminent and required that you take immediate action. This does not generally include an economic emergency or one where you are suffering psychological harm. However, there is a case where the court allowed a homeless individual to use the necessity defense when charged with violating an ordinance prohibiting sleeping in a state park. The court opined that lack of sleep was a significant enough evil to be averted and that he lacked a legal alternative due to his economic circumstances1.  It may have been necessary for the defendant to have shown the lack of a nearby homeless shelter for him to find refuge as a legal alternative to his unlawful act. 

There Was No Adequate Legal Alternative to Your Act

If you felt you had no choice but to commit the act, then you have to show that there was no other legal alternative available to you, such as calling the police. An example is a defendant who was being forced by gang members to rob a bank or liquor store. If a gang member accompanied the defendant into the place to be robbed, then the defendant had no opportunity to call police, so this element would likely be satisfied. If the defendant refused to rob the person, it was entirely reasonable to assume the defendant would suffer great bodily harm and that the person to be robbed may nonetheless have been robbed by the gang member.

However, if the gang members wait outside or in a getaway vehicle, the defendant had an opportunity to alert the robbery victim to call police. It makes no difference if the defendant argues that he was so intimidated by the gang that he had to commit the act. 

Calling police is just one legal alternative. Taking steps other than committing a criminal act, no matter how innocuous it may be so as to remove the potential harm or danger is another. For instance, your wife or girlfriend may have sustained a severe injury or was having a heart attack. You rush her to the hospital in your car, running stop signs and lights before you cause an accident or are stopped by police. In this case, your alternative was to call 911. You might be able to argue otherwise if you had called 911 a number of times and no one was responding ,or no phone was available, or there was no persons around who could have called for you. 

Your Act Did Not Create an Even Greater Damage or Harm

Even if the emergency required immediate action on your part, your act cannot produce or lead to damage or a situation that is worse than the one being averted. For instance, if a person was in dire need of a rare antidote to save him from death, you might use the defense to justify your burglarizing a facility at night when no one was present to obtain it.

However, if a security guard stops you and denies you entry to the building, you are not justified in fatally assaulting the guard. But if you merely caused the guard a slight injury such as a concussion in knocking him out, you can argue that you averted a greater harm or evil—the death of the person needing the antidote—than the one you created. However, assaulting a person even to avoid a greater harm may be difficult to justify.

You had an actual belief that your act was necessary to prevent the threatened harm or evil

If you had an honest belief that your act was necessary to prevent an even greater harm or disaster, then you may satisfy this element of the defense. In many instances, there are reasonable and legal alternatives to committing a crime. But if you were unaware of this alternative, then you might satisfy this element as well. 

For instance, you are in a car accident where the steering system failed and the car crashes into a tree, severely injuring your passenger who is losing blood and will die unless he gets immediate attention. Both of your cell phones are damaged and not operable. Unknown to you, there is a 7-11 a few hundred yards away. You see a car approaching and wave the motorist down, but the driver refuses to help and says he has no phone and is going home. You pull the driver out of the car and drive to town a few miles  away where you find a store and get someone to call 911. Your act in stealing the car may be justified in preventing the death of your passenger. Although the 7-11 was only minutes away by foot, you honestly believed you had no alternative but to commit the act in order to save the life of your passenger. 

A Reasonable Person Would Have Believed Your Act Was Necessary

Your honest belief that you had no legal alternative or that you were preventing a greater harm or evil must be reasonable to an ordinary person. In some of these cases, the person trying to assert the defense is not mentally stable. For instance, you may have honestly believed the government would kill you unless you obtained certain dental equipment to pull your own teeth which you contend were receiving lethal radio waves and slowly killing you. To get your teeth pulled,  you had to burglarize a dental office to get it. This would be an unreasonable belief regardless if you honestly believed it, however, insanity would be your alternate defense. 

You had not created or substantially contributed to the emergency that necessitated your act

If you created or substantially contributed to the situation that led to the emergency, then the necessity defense will fail. Often, a defendant whose intoxicated driving causes an accident will claim that he had no choice but to drive. In one case where this situation was presented, the defendant had one of his friends drive who was also intoxicated but was falling asleep at the wheel. The defendant took over and caused a fatal accident. The court would not allow the jury to be instructed on the necessity defense because the defendant had created the emergency by having allowed only intoxicated passengers into his car2. While it may have been necessary to drive if no legal alternative existed (no cab, bus, ride-share), the defendant contributed to the “atmosphere of necessity.”

Difference Between Necessity Defense and Duress

A defendant may assert that he was forced to commit the crime under duress, or that someone had threatened him or his family with bodily harm unless he performed an unlawful act. A major difference between the necessity and duress defenses is that in the former you intended to commit the crime but only to prevent a greater harm or evil from occurring. For duress, you lacked criminal intent since you were under duress. 

The duress defense has 3 elements:

  1. You were threatened or menaced by someone
  2. Someone demanded that you carry out the crime or the threatened harm would be carried out
  3. And, you had an honest and reasonable belief that your or someone else’s life would be in immediate jeopardy if you failed to carry out the crime

For the duress defense to apply, the harm threatened must have been immediate if you failed to carry it out. If not, then you may have had time to alert the authorities. For instance, a gang kidnaps the defendant and demands that he rob a liquor store or his sister, being held as well, will be killed. The defendant can claim the duress defense in this case. But if the defendant’s sister is in another city and it would take a day or so for the threat to be carried out, and the defendant was allowed to leave, then the defense would likely not be available since the threatened harm was not imminent and you had an opportunity to alert authorities.  

Further, a defendant using the duress defense need only raise reasonable doubt that he possessed the intent to commit the crime because of the threat and its imminence in being carried out. The necessity defense requires the defendant to prove all 6 elements by a preponderance of the evidence. 

Can Medical Necessity be a Defense to Illegal Marijuana Cultivation?

In 1996, California voters passed a resolution that allowed certain persons to use marijuana for medical purposes without criminal penalty, known as the “Compassionate Use Act”  ((Cal. Health and Safety Code § 11362.5(b)(1).)) The law was buttressed by the Medical Marijuana Program Act in 2004. This law created an identification card for qualified users to display to police, and promoted a uniform application of the law. 

In 2018, though, the voters passed Prop 64, legalizing recreational use of marijuana for those 21 and over. Under the law, any adult may cultivate up to 6 mature or 12 immature plants for his/her own use. The plants must be grown in a secure indoor or outdoor location, and cultivation is subject to local ordinances that may restrict or even prohibit it. 

However, if you are a medical marijuana patient who has been prescribed the drug, then you may be able to cultivate more plants if you have a doctor’s recommendation and the number of plants you are growing is consistent with your reasonable needs under HS 11358 ((HS 11358)).

If you happen to cultivate more plants than the law permits and without a doctor’s written recommendation, you could be in violation of HS 11358. This is generally a misdemeanor if you cultivate more than 6 plants for recreational use. If convicted, you face:

  • Up to 6-months in county jail
  • And/or a fine up to $500

A violation may be charged as a felony if you fit within any of these categories:

  • Registered sex offender
  • Have a history of  serious or violent felony convictions 
  • Have at least 2 prior convictions for violating HS 11358 (cultivated more than 6 plants)
  • You are in violation of particular environmental laws during cultivation 

If convicted, you face:

  • 16-months, 2 or 3 years in county jail
  • A fine up to $10,000

However, if you were arrested for cultivating an excessive number of plants for recreational use only and you have no more than one prior, non-violent offense for violating this HS 11358, you may be eligible for deferred entry of judgment (DEJ) under Penal Code 1000. If eligible, you would enter a guilty plea, but sentencing is deferred for 18 to 36-months for you to receive drug treatment. If completed with no other offenses, your case will be dismissed.

As a medical marijuana user, you are given wide latitude in the number of plants you are permitted to cultivate, so long as you have a medical doctor’s recommendation. 

But can you use medical necessity as a defense if you did not obtain a medical recommendation and are charged with cultivating more than 6 plants or more than what is considered reasonable based on your medical recommendation?


If you can show that you somehow needed to grow more plants than what might be deemed necessary or reasonable for your medical condition because of soil or other environmental conditions that made cultivation difficult, then you might be able to assert a defense under the Compassionate Use Act or Medical Marijuana Program Act. To utilize the defense under any of these laws, you have the burden of raising reasonable doubt that your conduct was unlawful3. This would include evidence that your use was recommended by a physician or that the amount you possessed or cultivated was reasonably related to your medical needs. Also, you  need not show that you had a “medical necessity” for the drug in order to use the defense of Compassionate Use.4.

Can Prison Inmates Use the Necessity Defense?

The issue of prison violence is not a new one. Inmates are at the mercy of violent criminals who are not always monitored by prison staff. It is not that uncommon for inmates to be victims of an abusive staff as well. In some of these cases, inmates have successfully used the necessity defense in committing a crime to save themselves from great bodily harm of death but only under the limited circumstance of escaping from prison. To be successful, the inmate must demonstrate the following:

  1. He faced an imminent threat of death, sexual assault, or substantial injury
  2. He had no time to either warn prison staff (guards) or there was a history of inaction or indifference by the staff to such threats 
  3. There was no time to get assistance or relief from the court
  4. The inmate did not use violence on any prison staff or worker or innocent third party while escaping5.
  5. And, the inmate turned himself in at the earliest opportunity once he was safe from the threat

This is a rare circumstance since prison escapes are rare and difficult to engineer without assistance from a third party. An inmate also might have had the legal alternative of alerting his attorney or a family member to his plight that would render the defense inapplicable. 

Next Steps If You Need Help

If you have been arrested and would like to learn more about how attorneys charge.

If you want to understand why its important to have an attorney represent you.

If you would like to discuss a pending case that might include a necessity defense with an attorney contact the Aizman Law Firm at 818-351-9555 for a free confidential consultation.

Request A Free Consultation 818-351-9555 


  1. In re Eichorn (1998) 69 Cal.App.4th  382, 389-391 []
  2. People v. Verlinde (2002) 100 Cal.App.4th 1146, 1165 []
  3. People v. Mower (2002) 28 Cal.4th 457, 470; People v. Jones (2003) 112 Cal.App.4th 341, 350 []
  4. People v. Tilekooh (2003) 113 Cal. App.4th 1433,1441 []
  5. People v. McKinney (1986) 187 Cal. App.3d 583, 587 []