State v. Anthuber

201 Wis. 2d 512, 549 N.W.2d 477 (Ct. App. 1996)



The four elements which comprise the Wis. Stat. § 939.47 necessity defense are as follows: (1) the defendant must have acted under pressure from natural physical forces; (2) the defendant's act was necessary to prevent imminent public disaster, or death, or great bodily harm; (3) the defendant had no alternative means of preventing the harm; and (4) the defendant's beliefs were reasonable.


A felon was found injecting himself with heroin in his prison cell. He was convicted of heroin possession and appealed on the ground that the trial court erroneously rejected his necessity defense. He asserted that his illegal drug use was made necessary by the Department of Corrections depriving him of the methadone it promised to provide.


Was the felon entitled to the necessity defense?




The court affirmed the conviction, holding that defendant was not entitled to the defense because the addiction which drove him to inject heroin on this occasion ultimately rested in his conscious decision to start using illegal drugs. The court held that the force affecting defendant was not a "natural physical force" as required for a necessity defense under Wis. Stat. § 939.47 because he set it in motion when he made the decision to start using heroin, and there was no evidence that he had no control over whether to make the initial choice. The Court also noted that although the State's choice to place defendant in a facility where methadone could not be prescribed was an administrative blunder it was not so egregious as to warrant the court's interference in the State's law enforcement power.

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