City of Chico v. Davis Hewitt
This post concerns the defense of necessity. In my ten years as a practicing defense attorney, I’ve handled only one case involving a successful claim of necessity. That case was City of Chico v. Davis Hewitt. But before I tell you about it, let’s cover some of the necessity defense basics.
What Is the Necessity Defense?
Generally speaking, a necessity defense allows someone to avoid criminal liability if they committed a crime to prevent a greater harm. In other words, the law acknowledges that, under extreme circumstances, breaking the law may be the right thing to do.
For example:
A driver swerves onto the sidewalk to avoid hitting a pedestrian in the road.
Someone trespasses into a cabin in the mountains during a snowstorm to avoid freezing to death.
A person breaks into a car to rescue a trapped child or animal in danger.
In each of these situations, the person technically committed a crime—but they did so to prevent a far greater harm. Under California law, that can be a valid legal defense.
The Legal Standard for Necessity in California
California courts have long recognized necessity as a valid defense, and it’s outlined in the California Criminal Jury Instruction (CALCRIM) No. 3403.
To successfully use the necessity defense, a defendant generally must show that:
They acted in an emergency to prevent a significant bodily harm or evil.
They had no adequate legal alternative.
The harm avoided was greater than the harm caused by breaking the law.
They genuinely believed their actions were necessary to prevent the greater harm.
A reasonable person in the same situation would have believed the same thing.
They did not substantially contribute to the emergency situation.
If these elements are met, a jury may find that the defendant’s conduct was legally justified—even if it technically violated the law.
Limits of the Necessity Defense
It’s important to note that necessity does not excuse all unlawful conduct. There are certain cases where California courts generally do not allow the defense. Each case turns on its facts. An experienced criminal defense attorney can usually analyze whether necessity truly applies or whether another defense—such as duress or self-defense—may be more appropriate.
Why Legal Guidance Is Critical
The necessity defense can be powerful, but it’s also complex and fact-specific. Prosecutors can be expected to challenge it aggressively, and the burden rests on the defense to produce sufficient evidence showing that every element of the defense applies.
If you’ve been charged with a crime in California and believe you acted out of necessity, contact criminal defense attorney Davis W. Hewitt for a free 30-minute consultation at his Chico office.
City of Chico v. Davis Hewitt
A few years ago I was purchasing a home in the city of Chico. We had a closing date set and the final task was making a final inspection walkthrough of the house. If I didn’t make this final inspection, the closing date likely would have been delayed by at least a week or two - at least that’s how I remember it.
While in escrow, there had been a new property tax assessment which increased the tax bill by about $8,000. This new tax assessment would kick in at as soon as the deal was done. Now this house is located in an area of Chico that requires a permit for street parking, and of course I didn’t have a permit for street parking because I didn’t live there. The clock was ticking and the players were waiting at the house for the inspection and we were up against the deadline.
So without a permit, I parked in the permit zone and made the inspection but later discovered a ticket on my windshield. $47 dollars, or something. I appealed the ticket, arguing that it was necessary for me to park without a permit because if I hadn’t, closing could have been the delayed, and if closing had been delayed then the new tax assessment wouldn’t kick in, and if the new tax assessment didn’t kick then the great city of Chico would be deprived of tax revenue. A necessity defense, right?
A few weeks later I received a letter in the mail telling me that they were ruling in my favor and dismissing the ticket. That’s one of probably a handful of successfully litigated necessity defense cases in the history of California criminal law.
:)
