Blog Post

Druess and Necessity

When accused of a crime, the defenses of duress or necessity should always be considered. However, these defenses should be raised only in circumstances when the evidence supports it. This article will break down each defense, and how each can be used to acquit a defendant facing charges.

What is Duress or Necessity?

The Duress or Necessity defense arises when a person commits an offense when they felt they had no choice but to commit it. Arizona Revised Statute 13-412(A). Here is the statute’s language:

Conduct which would otherwise constitute an offense is justified if a reasonable person would believe that he was compelled to engage in the proscribed conduct by the threat or use of immediate physical force against his person or the person of another which resulted or could result in serious physical injury which a reasonable person in the situation would not have resisted.

For example, if you commit a DUI because you were fleeing from danger, and driving impaired was your only option, then the defense may work.

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
• The danger or emergency threatened significant harm to yourself or a third person
• The danger or emergency threatened death or serious bodily injury
• The threatened harm must have been present, imminent, and impending
• You had no reasonable means to avoid the danger or emergency except by committing the crime
• The offense must have been committed out of duress or necessity to avoid the danger or emergency
• The harm that you avoided must outweigh the harm caused by committing the offense

Cases from Duress

Cases have elaborated on the necessity of duress. In U.S. v. Contento-Pachon, 723 F.2d 691 (9th Cir. 1984), a defendant was approached by drug traffickers in Colombia, demanding that he swallow cocaine-filled balloons and transport them to the U.S. If the defendant denied, the traffickers said they would kill his wife and three year old child.

The defendant was caught with the drugs, arrested, and appealed. The 9th Circuit held that this threat was “present, immediate and impending”, which was enough to satisfy the duress defense.

In a similar case, the defendant was accused of illegally exporting military communications equipment. The defendant introduced evidence of threats against his family during trial, which the court denied as a duress defense. United States v. Chi Tong Kuok.

Again, the 9th Circuit reversed, concluding that the threats to his family were “immediate and serious”, and sufficient to support a duress defense.

Pendants do not need to prove that they were in imminent danger at the time of the offence.

It is important to know that defendants in Arizona do not need to prove that they were in imminent danger at the time of the offense.

In 2018, the Arizona Supreme Court made clear that defendants need not prove that they were in imminent danger when the offense occurred. In State v. Ritchter, the Supreme Court held that three months of ongoing threats may constitute “threat or use of immediate physical force” under the duress statute. A.R.S. 13-412(A).

This holding was crucial because it changed Arizona’s duress law for defendants. While the duress statute required “threat or use of immediate physical force”, the Supreme Court held that a person constantly living in fear was enough to support a duress defense. As the Court stated:

“An ongoing threat of harm can be sufficiently immediate and present for purposes of a duress defense even when the threat precedes the illegal conduct by several days…”

What if I drove drunk to get away from a dangerous simulation?

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 that particular danger.

For example, suppose you were in fear of your spouse or significant other, and you drive off drunk in order to escape the situation. You then get 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.

As another situation, suppose that you lived next door to a police officer who was home. Again, the necessity defense may not work because you could have avoided the danger without committing the offense of DUI by walking next door. Facts are crucial in a duress or necessity case.

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. However, you would establish the duress or necessity defense through evidence, including witnesses, your own testimony, and any supporting or corroborating evidence that is available.

Final thoughts

My 32 years of practice has given me much insight to the duress and necessity defenses. While no two cases are the same, the defenses of duress and necessity still remain in Arizona, available for those accused of criminal charges.

If you face criminal charges, call me at (480) 545 – 0700. There may be other defenses besides duress and necessity that may apply to your case.