General Provisions

ORS 161.200
Choice of evils


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:


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


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.


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 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 companion's 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 court's 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 Women's 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) defendant's 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

§§ 161.190 to 161.265

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


Notes of Decisions

Legislature's 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


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Jun. 26, 2021