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Can I use the affirmative defense (necessity) in a drug trafficking case.

Fort Pierce, FL |

I was arrested for trafficking hydrocodone (16 pills) that my sister gave to me. Neither of us knew it was illegal for me to have them. I have been prescribed hydrocodone several times for my back although at the time I could not afford to refill my own prescription so my sister gave me what was left of hers (she has the same back problems). At the time of the arrest I was going to an appointment for an MRI and to get a new hydrocodone prescription. Does the affirmative defense apply to my case since I have medical proof of my condition and that I currently am prescribed to hydrocodone?

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Attorney answers 3


That is one possibilty. However, there may be a motion to dismiss too. There have been recent rulings saying that the drug trafficking statute is unconstitutional in some situations. You really need to talk to an attorney in person since you face up to 30 years in prison. This isn't the time to be going on a forum and trying to get legal advice when you are facing such serious time.


I agree that you should consult and hire an attorney as soon as possible. You are facing some very serious prison time if convicted and should not be discussing your case online. That being said, your idea about a necessity defense will probably not be successful. Necessity requires proof of several elements which are outlined in the following jury instruction (which would be read to the jury at the end of your case). As you will see, necessity requires you prove that you were trying to avoid some danger by committing the crime you committed. It also requires the danger be "imminent." When you do speak to an attorney, he or she should be very interested in the circumstances of your arrest. It is possible there is a motion to exclude (suppress) the drugs found from your trial. This will depend on a number of facts surrounding the initial police encounter. Be prepared to talk in detail about what actually happened. In the meantime, take a look at the necessity jury instruction:

"It is a defense to the crime charged if the defendant acted out of necessity. In order to find the defendant committed the crime charged out of necessity, you must find the following six elements:

1. The defendant reasonably believed a danger or an emergency existed which was not intentionally caused by himself or herself.

2. The danger or emergency threatened significant harm to himself or herself or a third person.

3. The threatened harm must have been real, imminent, and impending.

4. The defendant had no reasonable means to avoid the danger or emergency except by committing the crime charged.

5. The crime charged must have been committed out of necessity to avoid the danger or emergency.

6. The harm that the defendant avoided must outweigh the harm caused by committing the crime charged.

"Imminent and impending" means the danger or emergency is about to take place and cannot be avoided by using other means. A threat of future harm is not sufficient to prove this defense. Nor can the defendant use the defense of necessity if he or she committed the crime after the danger from the threatened harm had passed.

The reasonableness of the defendant's belief that a danger or an emergency existed should be examined in the light of all the evidence.

In deciding whether it was necessary for the defendant to commit the crime charged, you must judge the defendant by the circumstances by which he or she was surrounded at the time the crime was committed.

The danger or emergency facing the defendant need not have been actual; however, to justify the commission of the crime charged, the appearance of the danger or emergency 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 crime charged. Based upon appearances, the defendant must have actually believed that the danger or emergency was real.

If you find from the evidence that the defendant committed the crime charged out of necessity, you should find the defendant not guilty.

However, if you find that the defendant did not commit the crime charged out of necessity you should find the defendant guilty if all the elements of the charge have been proved."


Your case is very serious. I doubt the necessity defense will apply but that does not mean that there are not plenty of other options and defenses. You need to consult with an experienced attorney and ascertain your options.

If you are charged with 16 pills then the weight of the pills will likely be between 4 and 14 grams. This means that you are likely facing a 3 year minimum mandatory sentence.

Below are the hydrocodone minimum mandatory sentences:
4 to 14 grams = 3 year minimum mandatory;
14 to 28 grams = 15 year minimum mandatory;
28+ grams = 25 year minimum mandatory.

You need an experienced attorney working with you on your case immediately.

Contact me if you would like a consultation.

Best of luck.

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