Second this is not legal advise, but I don't care what the law says at that moment, if your friend can save your life and doesn't he's no friend. I wouldn't care if I was even a prohibited person, I would try to help.
I actually agree with SVG on something...
with this caveat, if the "friend" is one of my liberal friends who's never touched a gun and doesn't know how to kill a bad guy without ventilating every wall within 180 degrees of the muzzle, I'd much rather they not help in that case.... if they have the skill and confidence, yes they should help, but I won't fault someone who doesn't because they don't possess the nessecary skills to help in that case.
if i choke at a party, I don't want a friend who knows nothing about medicine or human antanomy attempting a tracheotomy with an oyster knife.... same deal with guns...
You mean you did not learn that there is a Necessity—Defense in Washington while carrying in your room at home?
SVG you didn't know about this defense?
If the person riding with her had lost their right to posses or own a weapon, one may violate a law to avoid a greater harm where deadly force is authorized. Though if she was capable in using the firearm then he would or could be in a gray area.
State of Washington Practice Series TM
Database Updated November 2011
Washington Pattern Jury Instructions--Criminal
2008 Edition Prepared by the Washington Supreme Court Committee On Jury Instructions, Hon. Sharon S. Armstrong, Co-Chair, Hon. William L. Downing, Co-Chair
Part IV. Defenses
WPIC CHAPTER 18. Miscellaneous Defenses
WPIC 18.02 Necessity—Defense
Necessity is a defense to a charge of __________ if
(1) the defendant reasonably believed the commission of the crime was necessary to avoid or minimize a harm; and
(2) the harm sought to be avoided was greater than the harm resulting from a violation of the law; and
(3) the threatened harm was not brought about by the defendant; and
(4) no reasonable legal alternative existed.
The defendant has the burden of proving this defense by a preponderance of the evidence. Preponderance of the evidence means that you must be persuaded, considering all the evidence in the case, that it is more probably true than not true. If you find that the defendant has established this defense, it will be your duty to return a verdict of not guilty [as to this charge].
NOTE ON USE
Use in every case in which the common law defense of necessity is asserted. Do not use when a statute, or case law, provides exceptions or defenses dealing with the specific situation involved. See the Comment below.
Use WPIC 19.17, Bail Jumping—Unforeseen Circumstances—Defense, and WPIC 19.16, Escape—First and Second Degree—Unforeseen Circumstances—Defense, when the offense charged is bail jumping or escape.
Use WPIC 52.10, Marijuana—Qualifying Patient—Defense, or WPIC 52.11, Marijuana—Designated Provider—Defense, when the offense charged is possession, delivery, or manufacturing of marijuana.
Use WPIC 94.10, Attempting to Elude a Police Vehicle—Reasonable Belief that the Pursuer is Not a Police Officer—Defense, when the offense charged is eluding and the defendant is claiming that the identity of the driver of the pursuing vehicle was unknown to him or her.
For certain medical necessity cases, paragraph (4) may need to be revised to add the phrase “equally effective.” See discussion in the Comment below.
COMMENT
Limited applicability—Common law defense. The instruction sets forth the common law defense of necessity, as recognized in State v. Diana, 24 Wn.App. 908, 604 P.2d 1312 (1979). Because the common law defense must yield to a statutory defense for a particular crime, see discussion below, the instruction has limited applicability.
Instruction does not apply to crimes that have a statutory necessity defense. Statutory defenses on necessity supersede the common law defense. See State v. Diana, 24 Wn.App. at 913–14 (quoting Section 3.02(1)(b) of the Model Penal Code). Accordingly, before giving WPIC 18.02, the court should determine that (1) neither the criminal code nor other laws defining the offense provide exceptions or defenses dealing with the specific situation involved, and (2) a legislative purpose to exclude the justification claimed does not otherwise appear. State v. Diana, 24 Wn.App. at 914.
Several statutes supersede the common law defense of necessity for particular crimes, including:
• Bail jumping: RCW 9A.76.170(2);
• Escape, first and second degree: RCW 9A.76.110(2) and 9A.76.120(2);
• Eluding: RCW 46.61.024(2)(a);
• Schedule I drugs: see State v. Williams, 93 Wn.App. 340, 344–47, 968 P.2d 26 (1998) (statutes classifying Schedule I drugs preclude application of necessity defense); State v. Butler, 126 Wn.App. 741, 746–47, 109 P.3d 493 (2005) (same holding).
• Medical marijuana, qualifying patient defense: RCW 69.51A.040(3); State v. Butler, 126 Wn.App. at 748–50 (the Medical Use of Marijuana Act affirmative defense superseded the common law medical necessity defense);
• Medical marijuana, designated provider defense: RCW 69.51A.040(3).
Practitioners should consult the applicable statutes, including the most recent legislative enactments for any new defenses, before using WPIC 18.02.
Instruction does not apply to defending property from wildlife damage. When the defendant kills or injures wildlife in order to protect property, the jury should be instructed with instructions based on State v. Burk, 114 Wash. 370, 195 P. 16 (1921), rather than with the pattern instruction on necessity. See State v. Vander Houwen, 163 Wn.2d 25, 177 P.3d 93 (2008) (holding that the constitutional right to protect property requires the State to bear the burden of proof).
Availability of common law defense. The common law defense of necessity was recognized in State v. Diana, supra. In that case the Court of Appeals held that the trial court should have taken additional evidence to determine whether the defendant's possession of marijuana was justified by medical necessity. The Court of Appeals noted that the defense is available “when the physical forces of nature or the pressure of circumstances cause the accused to take unlawful action to avoid a harm which social policy deems greater than the harm resulting from the violation of the law.” State v. Diana, 24 Wn.App. at 913. “The defense is not applicable where the compelling circumstances have been brought about by the accused or where a legal alternative is available to the accused.” State v. Diana, 24 Wn.App. at 913–14. The Diana court's analytical framework remains good law, although the opinion's specific holding as to applying the common law's medical necessity defense to the possession of Schedule I drugs has been superseded by statute. See State v. Williams, 93 Wn.App. at 344–47 (holding that the Legislature's designation of Schedule I drugs as having no accepted medical use renders unavailable the medical necessity defense).
Burden of proof. “[T]he defendant must prove by a preponderance of the evidence that (1) he or she reasonably believed the commission of the crime was necessary to avoid or minimize a harm, (2) the harm sought to be avoided was greater than the harm resulting from a violation of the law, and (3) no legal alternative existed.” State v. Gallegos, 73 Wn.App. 644, 651, 871 P.2d 621 (1994); State v. Bailey, 77 Wn.App. 732, 893 P.2d 681 (1995).
“Reasonable legal alternative.” The instruction's paragraph (4) uses the term “reasonable legal alternative.” The reasonableness requirement is based on State v. Jeffrey, 77 Wn.App. 222, 224–26, 889 P.2d 956 (1995); see also State v. Parker, 127 Wn.App. 352, 354–55, 110 P.3d 1152 (2005) (citing Jeffrey with approval).
“Equally effective.” For medical necessity cases, the term “equally effective” may need to be added to the instruction's paragraph (4). See State v. Pittman, 88 Wn.App. 188, 943 P.2d 713 (1997) (in cases for which a defense of medical necessity is still available, the defendant will be required to show that there is no equally effective legal drug).
Comparison with defense of duress. Where the pressure upon the defendant comes from another human being, instead of from the physical forces of nature, the jury should be instructed on the defense of duress rather than the defense of necessity. State v. Turner, 42 Wn.App. 242, 711 P.2d 353 (1985).
[Current as of July 2008.]
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