2015 ORS § 161.200¹

Choice of evils

(1) Unless inconsistent with other provisions of chapter 743, Oregon Laws 1971, defining justifiable use of physical force, or with some other provision of law, conduct which would otherwise constitute an offense is justifiable and not criminal when:

(a) That conduct is necessary as an emergency measure to avoid an imminent public or private injury; and

(b) The threatened injury is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding the injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue.

(2) The necessity and justifiability of conduct under subsection (1) of this section shall not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder. [1971 c.743 §20]

Note: See note under 161.015 (General definitions).

Notes of Decisions

Trial court properly granted pretrial mo­tion preventing defendant, charged with escape in third de­gree from custody of proba­tion of­fi­cer, from presenting evidence for purpose of choice-of-evils de­fense that defendant escaped in order to avoid being returned to county jail where he had been beaten by other prisoners and forced to commit oral sodomy. State v. Whisman, 33 Or App 147, 575 P2d 1005 (1978)

Ra­tionale of case law that duress under ORS 161.270 (Duress) requires danger to be present, imminent and impending is equally applicable to choice of evils. State v. Whisman, 33 Or App 147, 575 P2d 1005 (1978)

Under evidence that defendant put companions gun in her purse because she was afraid that in his disturbed state of mind he might use it when he returned to restaurant, defendant was entitled to jury instruc­tion on choice-of-evils de­fense. State v. Lawson, 37 Or App 739, 588 P2d 110 (1978)

Choice-of-evils de­fense is available to defendant charged with being ex-convict in pos­ses­sion of firearm. State v. Burney, 49 Or App 529, 619 P2d 1336 (1980)

Where defendant, charged with eluding police of­fi­cer, was allegedly seeking to avoid assault by police of­fi­cer and further delay in returning to care for his mother, trial courts refusal to instruct on necessity was error. State v. Matthews, 30 Or App 1133, 569 P2d 662 (1977)

Choice-of-evils de­fense is not available in pros­e­cu­­tions for driving while revoked in viola­tion of [former] ORS 484.740. State v. Neubauer, 68 Or App 885, 683 P2d 136 (1984)

Defendant may justify otherwise crim­i­nal act by showing it was necessary as an emergency measure to avoid an imminent public or private injury. State v. Olson, 79 Or App 302, 719 P2d 55 (1986)

Choice-of-evils de­fense is not limited to ac­tions taken to protect life, but also may be invoked by defendant who has acted unlawfully in order to protect prop­erty. State v. Webber, 85 Or App 347, 736 P2d 220 (1987), Sup Ct review denied

Where evidence included graphic photographic evidence of research practices and abuses and graphic videotaped docu­mentaries, trial court did not abuse its discre­tion in ruling on admissibility of evidence before trial. State v. Troen, 100 Or App 442, 786 P2d 751 (1990), Sup Ct review denied

Activity that is lawful and nontortious is not imminent public or private injury as re­quired for choice-of-evils de­fense. State v. Clowes, 310 Or 686, 801 P2d 789 (1990)

Choice-of-evils de­fense is inconsistent with . . . other pro­vi­sion of law where legislature has deliberately made contrary value choice. State v. Clowes, 310 Or 686, 801 P2d 789 (1990); State v. Ownbey, 165 Or App 132, 996 P2d 510 (2000), on reconsidera­tion 168 Or App 525, 7 P3d 653 (2000), Sup Ct review denied

Choice-of-evils de­fense could not exonerate defendants charged with contempt for violating injunc­tion arising from demonstra­tion to prevent abor­tions because de­fense is available only if defendants necessary con­duct is not inconsistent with other pro­vi­sions of law. Downtown Womens Center v. Advocates for Life, Inc., 111 Or App 317, 826 P2d 637 (1992)

Where threat of injury, if there was one, existed on day defendant was scheduled to appear in court and was condi­tioned on what he might do on that date, threat was imminent. State v. Boldt, 116 Or App 480, 841 P2d 1196 (1992)

to Establish Choice Of Evils Defense Requires Evidence Sufficient to Show

1) defendants con­duct was necessary to avoid threatened injury; 2) threatened injury was imminent; and 3) it was reasonable for defendant to believe need to avoid threatened injury was greater than need to avoid potential injury from illegal con­duct. State v. Boldt, 116 Or App 480, 841 P2d 1196 (1992); State v. Miles, 197 Or App 86, 104 P3d 604 (2005), Sup Ct review denied

Notes of Decisions

Under Former Similar Statute (Ors 163.110)

There were cases where self-de­fense would not be a de­fense but the right to self-de­fense was still available to es­tab­lish that the defendant was engaged in a lawful act at the time of the killing. State v. Leos, 7 Or App 211, 490 P2d 521 (1971)

Chapter 161

Notes of Decisions

A juvenile court adjudica­tion of whether or not a child committed acts which would be a crim­i­nal viola­tion if committed by an adult must necessarily include an adjudica­tion of all af­firm­a­tive de­fenses that would be available to an adult being tried for the same crim­i­nal viola­tion. State ex rel Juvenile Dept. v. L.J., 26 Or App 461, 552 P2d 1322 (1976)

Law Review Cita­tions

2 EL 237 (1971); 51 OLR 427-637 (1972)

Chapter 161

Criminal Code

(Generally)

Notes of Decisions

Legislatures adop­tion of 1971 Criminal Code did not abolish doctrine of transferred intent. State v. Wesley, 254 Or App 697, 295 P3d 1147 (2013), Sup Ct review denied


1 Legislative Counsel Committee, CHAPTER 161—General Provisions, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors161.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 161, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano161.­html (2015) (last ac­cessed Jul. 16, 2016).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.