necessity defense in Oregon

2023Finally, as to the third element of choice of evils, a jury could find on this record that defendant reasonably believed that the threatened injury to other drivers and their 2 Whereas the necessity defense requires “[a]n injury or immediate threat of injury to a human being or animal,” ORS 811.180(1)(a), the choice-of-evils defense requires “an imminent public or private injury[,]” ORS 161.200(1)(a), which we have construed to include property damage, Haley, 64 Or App at 215 .

2023Finally, as to the third element of choice of evils, a jury could find on this record that defendant reasonably believed that the threatened injury to other drivers and their 2 Whereas the necessity defense requires “[a]n injury or immediate threat of injury to a human being or animal,” ORS 811.180(1)(a), the choice-of-evils defense requires “an imminent public or private injury[,]” ORS 161.200(1)(a), which we have construed to include property damage, Haley, 64 Or App at 215 .

2023Brown, 306 Or at 605 n 6 (describing the defenses as “somewhat similar” and referring to choice of evils as the “generalized necessity defense”).

2023Brown, 306 Or at 605 n 6 (describing the defenses as “somewhat similar” and referring to choice of evils as the “generalized necessity defense”).

2023See Costanzo, 94 Or App at 520 (the defendant’s friend’s testimony regarding the circumstances of the defendant’s driving was sufficient evidence to put the necessity defense to the jury, including allowing an inference “that defendant reasonably believed that [his friend]’s medical situation threatened imminent injury”); State v. Sweet, 93 Or App 642, 645-46 , 763 P2d 739 (1988) (the defendant’s wife’s testimony regarding an Cite as 326 Or App 36 (2023) 41 emergency driving situation was sufficient evidence to put the necessity defense to the jury, including as to whether the defendant “actua

2023See Costanzo, 94 Or App at 520 (the defendant’s friend’s testimony regarding the circumstances of the defendant’s driving was sufficient evidence to put the necessity defense to the jury, including allowing an inference “that defendant reasonably believed that [his friend]’s medical situation threatened imminent injury”); State v. Sweet, 93 Or App 642, 645-46 , 763 P2d 739 (1988) (the defendant’s wife’s testimony regarding an Cite as 326 Or App 36 (2023) 41 emergency driving situation was sufficient evidence to put the necessity defense to the jury, including as to whether the defendant “actua

2023See Costanzo, 94 Or App at 520 (the defendant’s friend’s testimony regarding the circumstances of the defendant’s driving was sufficient evidence to put the necessity defense to the jury, including allowing an inference “that defendant reasonably believed that [his friend]’s medical situation threatened imminent injury”); State v. Sweet, 93 Or App 642, 645-46 , 763 P2d 739 (1988) (the defendant’s wife’s testimony regarding an Cite as 326 Or App 36 (2023) 41 emergency driving situation was sufficient evidence to put the necessity defense to the jury, including as to whether the defendant “actua

2023See Costanzo, 94 Or App at 520 (the defendant’s friend’s testimony regarding the circumstances of the defendant’s driving was sufficient evidence to put the necessity defense to the jury, including allowing an inference “that defendant reasonably believed that [his friend]’s medical situation threatened imminent injury”); State v. Sweet, 93 Or App 642, 645-46 , 763 P2d 739 (1988) (the defendant’s wife’s testimony regarding an Cite as 326 Or App 36 (2023) 41 emergency driving situation was sufficient evidence to put the necessity defense to the jury, including as to whether the defendant “actua

2021For purposes of a necessity defense, the imminent threat is “one that is immediate, ready to take place, or near at hand.” State v. Taylor, 123 Or App 343, 348 , 858 P2d 1358 (1993); see also State v. Whisman, 33 Or App 147, 151 , 575 P2d 1005 (1978) (the harm a defendant seeks to avoid must be present and impending; “a threat of future injury [is] insufficient”).

2021For purposes of a necessity defense, the imminent threat is “one that is immediate, ready to take place, or near at hand.” State v. Taylor, 123 Or App 343, 348 , 858 P2d 1358 (1993); see also State v. Whisman, 33 Or App 147, 151 , 575 P2d 1005 (1978) (the harm a defendant seeks to avoid must be present and impending; “a threat of future injury [is] insufficient”).

2021Defendant’s testimony evidences the kind of gener- alized and vague concerns of harm that do not constitute Cite as 313 Or App 67 (2021) 73 the imminent threat required for a necessity defense.

2020Id.

2005United States v. Oakland Cannabis Buyers’ Cooperative, 532 US 483, 494 , 121 S Ct 1711 , 149 L Ed 2d 722 (2001).

2005United States v. Oakland Cannabis Buyers’ Cooperative, 532 US 483, 494 , 121 S Ct 1711 , 149 L Ed 2d 722 (2001).

2005In Rodriguez, 317 Or. 27 , 854 P.2d 399 , after presenting the defendant with an arrest warrant that may have been unlawful, the governmental agent warned the defendant of his rights to remain silent and to have counsel, and then asked the defendant whether he had any drugs or guns in his apartment.

2005In Rodriguez, 317 Or 27 , after presenting the defendant with an arrest warrant that may have been unlawful, the governmental agent warned the defendant of his rights to remain silent and to have counsel, and then asked the defendant whether he had any drugs or guns in his apartment.

2000Insofar as petitioner’s argument posits that it is anomalous for the shorter towers to be subject to a statutory test of necessity and the higher ones to be subject to no statutory test at all, we again disagree. 2 As construed in Brent-mar v. Jackson County, 321 Or 481 , 900 P2d 1030 (1995), the uses enumerated in ORS 215.283(1) are permissible “as of right,” at least in that they are not subject to county regulations that go beyond the limitations in the statute itself; conversely, the uses listed in ORS 215.283(2) are only conditionally permissible and may be subjected to county regulations

2000Insofar as petitioner’s argument posits that it is anomalous for the shorter towers to be subject to a statutory test of necessity and the higher ones to be subject to no statutory test at all, we again disagree. 2 As construed in Brent-mar v. Jackson County, 321 Or 481 , 900 P2d 1030 (1995), the uses enumerated in ORS 215.283(1) are permissible “as of right,” at least in that they are not subject to county regulations that go beyond the limitations in the statute itself; conversely, the uses listed in ORS 215.283(2) are only conditionally permissible and may be subjected to county regulations

1992Moreover, with the advent of reciprocal discovery, ORS 135.805 et seq; the requirement that, if the state has knowledge of evidence favorable to the defense or exculpatory in nature, the state is under an affirmative due process obligation to make it available to the defense, Brady v. Maryland, 373 US 83 , 83 S Ct 1194 , 10 L Ed 2d 215 (1963); State ex rel Dooley v. Connall, 257 Or 94 , 475 P2d 582 (1970); and the availability of subpoena duces tecum, the necessity for the instruction will be rare in a criminal case.

1992Moreover, with the advent of reciprocal discovery, ORS 135.805 et seq; the requirement that, if the state has knowledge of evidence favorable to the defense or exculpatory in nature, the state is under an affirmative due process obligation to make it available to the defense, Brady v. Maryland, 373 US 83 , 83 S Ct 1194 , 10 L Ed 2d 215 (1963); State ex rel Dooley v. Connall, 257 Or 94 , 475 P2d 582 (1970); and the availability of subpoena duces tecum, the necessity for the instruction will be rare in a criminal case.

1992Moreover, with the advent of reciprocal discovery, ORS 135.805 et seq; the requirement that, if the state has knowledge of evidence favorable to the defense or exculpatory in nature, the state is under an affirmative due process obligation to make it available to the defense, Brady v. Maryland, 373 US 83 , 83 S Ct 1194 , 10 L Ed 2d 215 (1963); State ex rel Dooley v. Connall, 257 Or 94 , 475 P2d 582 (1970); and the availability of subpoena duces tecum, the necessity for the instruction will be rare in a criminal case.

1992Moreover, with the advent of reciprocal discovery, ORS 135.805 et seq; the requirement that, if the state has knowledge of evidence favorable to the defense or exculpatory in nature, the state is under an affirmative due process obligation to make it available to the defense, Brady v. Maryland, 373 US 83 , 83 S Ct 1194 , 10 L Ed 2d 215 (1963); State ex rel Dooley v. Connall, 257 Or 94 , 475 P2d 582 (1970); and the availability of subpoena duces tecum, the necessity for the instruction will be rare in a criminal case.

1991The statutes regarding other investigative techniques “assure that wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime.” United States v. Kahn, 415 US 143 , 153 n 12, 94 S Ct 977 , 39 L Ed 2d 225 (1974).

1991The statutes regarding other investigative techniques “assure that wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime.” United States v. Kahn, 415 US 143 , 153 n 12, 94 S Ct 977 , 39 L Ed 2d 225 (1974).

1986I write separately only to point out that in State v. Mains, 295 Or. 640 , 669 P.2d 1112 (1983), this court, in discussing the necessity for warnings, was dealing with a case in which the defendant had been arraigned, had been appointed counsel, was in full custody and was ordered to respond *907 to questions by a state-appointed psychiatrist.

1986I write separately only to point out that in State v. Mains, 295 Or. 640 , 669 P.2d 1112 (1983), this court, in discussing the necessity for warnings, was dealing with a case in which the defendant had been arraigned, had been appointed counsel, was in full custody and was ordered to respond *907 to questions by a state-appointed psychiatrist.

1974The use of a demurrer to attack a breathalyzer complaint which failed to plead factual material was held proper in Prucha v. Department of Motor Vehicles, 172 Neb 415, 110 NW2d 75 , 88 ALR2d 1055 (1961).

1950Rys., 138 Me. 215, 222 , 23 A. (2d) 814, 817: "The proper test as to the necessity for warning, when a highway crossing is obstructed by an unlighted train at night, is whether the railway employees, in the exercise of proper care, should recognize danger of collision with a highway vehicle operated by a man of ordinary prudence." Citing in support thereof: Gilman v. Central Vermont Ry.

1950Rys., 138 Me. 215, 222 , 23 A. (2d) 814, 817: “The proper test as to the necessity for warning, when a highway crossing is obstructed by an unlighted train at night, is whether the railway employees, in the exercise of proper care, should recognize danger of collision with a highway vehicle operated by a man of ordinary prudence.” Citing in support thereof: Gilman v. Central Vermont Ry.

1950Co., 93 Vt. 340 , 107 A. 122 , 16 A. L.

1950Co., 93 Vt. 340 , 107 A. 122 , 16 A. L.

1931This doctrine of necessity, however, has no application if it is clear from the will that the testator intended the trustee, in the management of the trust, to be limited and restricted to a certain plan of administration : Pennington v. Metropolitan Museum of Art, supra. Referring to the case of Broadway National Bank v. Adams, 133 Mass. 170 ( 43 Am.

1931This doctrine of necessity, however, has no application if it is clear from the will that the testator intended the trustee, in the management of the trust, to be limited and restricted to a certain plan of administration : Pennington v. Metropolitan Museum of Art, supra. Referring to the case of Broadway National Bank v. Adams, 133 Mass. 170 ( 43 Am.

1931Rep. 504 ), the court in Claflin v. Claflin, 149 Mass. 19 ( 20 N. E. 454 , 14 Am.

1931Rep. 504 ), the court in Claflin v. Claflin, 149 Mass. 19 ( 20 N. E. 454 , 14 Am.

1931This error appears from the record, viz., the pleadings and the findings, and does not depend upon the bill of exceptions to disclose it.” In Pullen v. Eugene, 77 Or. 320 ( 146 P. 822 , Ann.

1931This error appears from the record, viz., the pleadings and the findings, and does not depend upon the bill of exceptions to disclose it.” In Pullen v. Eugene, 77 Or. 320 ( 146 P. 822 , Ann.

1931In the early ease of Bridal Veil Lumbering Co. v. Johnson, 25 Or. 105 ( 34 P. 1026 ), the question of the necessity for an exception arose, and Mr. Justice Moore, spealdng for the court, said: “No exceptions are required to be taken or allowed to any decision upon a matter of law, when it is entered in the journal or made wholly upon matters in writing and on file in the court: Hill’s Code, § 233.” This decision is recognized and followed in Chung v. Stephenson, 50 Or. 244 ( 89 P. 386 ), where Mr. Justice Bakin, in delivering the opinion of the court, said: “We understand that exceptions are o

1931In the early ease of Bridal Veil Lumbering Co. v. Johnson, 25 Or. 105 ( 34 P. 1026 ), the question of the necessity for an exception arose, and Mr. Justice Moore, spealdng for the court, said: “No exceptions are required to be taken or allowed to any decision upon a matter of law, when it is entered in the journal or made wholly upon matters in writing and on file in the court: Hill’s Code, § 233.” This decision is recognized and followed in Chung v. Stephenson, 50 Or. 244 ( 89 P. 386 ), where Mr. Justice Bakin, in delivering the opinion of the court, said: “We understand that exceptions are o

1931In the early ease of Bridal Veil Lumbering Co. v. Johnson, 25 Or. 105 ( 34 P. 1026 ), the question of the necessity for an exception arose, and Mr. Justice Moore, spealdng for the court, said: “No exceptions are required to be taken or allowed to any decision upon a matter of law, when it is entered in the journal or made wholly upon matters in writing and on file in the court: Hill’s Code, § 233.” This decision is recognized and followed in Chung v. Stephenson, 50 Or. 244 ( 89 P. 386 ), where Mr. Justice Bakin, in delivering the opinion of the court, said: “We understand that exceptions are o

1931In the early ease of Bridal Veil Lumbering Co. v. Johnson, 25 Or. 105 ( 34 P. 1026 ), the question of the necessity for an exception arose, and Mr. Justice Moore, spealdng for the court, said: “No exceptions are required to be taken or allowed to any decision upon a matter of law, when it is entered in the journal or made wholly upon matters in writing and on file in the court: Hill’s Code, § 233.” This decision is recognized and followed in Chung v. Stephenson, 50 Or. 244 ( 89 P. 386 ), where Mr. Justice Bakin, in delivering the opinion of the court, said: “We understand that exceptions are o

1909The adoption of the rule is essential to the complete administration of justice, will tend to protect the courts and the family from fraud and wrong, and will serve as a warning to those inclined to practice such fraud.” The doctrine of this case has’ been followed in' the later case of Nicholson v. Nicholson, 113 Ind. 131 , 15 N. E. 223 .

1909The adoption of the rule is essential to the complete administration of justice, will tend to protect the courts and the family from fraud and wrong, and will serve as a warning to those inclined to practice such fraud.” The doctrine of this case has’ been followed in' the later case of Nicholson v. Nicholson, 113 Ind. 131 , 15 N. E. 223 .