The Duress or Necessity Defense in Florida

February 17, 2022 Criminal Defense

Duress, or Necessity, is an affirmative defense in Florida. It generally occurs when someone commits a crime but felt that they had no choice but to commit the crime. Essentially, the defense argues that the defendant only committed the criminal act because there was an emergency or danger. If this defense is successfully raised, the defendant could face zero criminal liability.

How Do You Raise the Defense?

In order to successfully raise the affirmative defense of duress, the defendant must establish the following elements:

  1. The defendant was under the reasonable belief that there was a danger or emergency (not caused by them);
  2. The danger or emergency could have caused serious harm to the defendant or others;
  3. The potential harm must have been imminent and authentic;
  4. The defendant could not reasonably avoid the danger or the emergency except by committing the criminal act;
  5. The criminal act was really committed solely due to the impending emergency or danger; and
  6. The threatened harm the emergency or danger would have brought outweighed the harm that occurred due to the defendant’s commission of the criminal act.

What Does Imminent and Impending Mean?

Under Florida law, these terms mean that the emergency or threat was about to happen and could not, under the circumstances present, be avoided by any other reasonable course of action. Therefore, any threats of future harm are not considered imminent or impending.


Under Florida law, the defendant cannot raise a necessity or duress defense when they committed the criminal offense after the threat or emergency had already passed.

What Danger or Emergency Will Suffice?

In Florida, the emergency or danger does not necessarily have to be real. The only requirement is that the defendant was under the reasonable belief that the danger or emergency was real. However, the appearance of an emergency or danger has to be as reasonable to a reasonably cautious and prudent person under the same circumstances as it was to the defendant. Essentially, the defendant must have believed the emergency or danger was real, and they must have been reasonable in that belief.

How Duress or Necessity Can Help with Marijuana Charges

This issue was discussed in Jenks v. State, a Florida 1st District Court of Appeal case. There, the court reversed marijuana cultivation convictions when the defendants established that there was a medical necessity that required their commission of the criminal offenses. They established that (1) they had no control over the situation which required them to choose between the medical necessity and the criminal charge; (2) they could not reasonably find an alternative that would cause less harm, and; (3) the criminal acts committed caused less harm than the potential harm of the medical necessity.

How Duress or Necessity Can Help with Traffic Charges

In Williams v. Sirmons, the Middle District of Florida dealt with this issue. There, the federal district court interpreted Florida law to uphold the defense in a situation where a pregnant woman was in need of urgent pregnancy medical services. She drove away from a traffic stop to avoid impending or imminent harm to her fetus.

Tallahassee Criminal Defense Attorney

It is pivotal to hire an experienced attorney who is familiar with applicable defenses to help fight against your criminal charges. Contact a qualified Tallahassee criminal defense attorney who can help you and your loved ones navigate the best path forward for your criminal matter. Don Pumphrey and the members of the legal team at Pumphrey Law Firm have experience defending Floridians against all types of state criminal charges and will ensure every applicable defense is explored in your favor. Give us a call at (850) 681-7777 or send an online message to discuss your legal matter during an open and free consultation with an attorney in our legal team.

Written by Gabi D’Esposito

Back to Top