Humphrey v. Commonwealth
In Humphrey v. Commonwealth, 37 Va. App. 36, 553 S.E.2d 546, (2001), the Court held that the General Assembly did not abrogate the common law defense of necessity in the enactment of Code 18.2-308.2. 37 Va. App. at 48, 553 S.E.2d at 551.
The Court also reiterated the essential elements of a necessity defense:
"(1) A reasonable belief that the action was necessary to avoid an imminent threatened harm;
(2) a lack of other adequate means to avoid the threatened harm;
(3) a direct causal relationship that may be reasonably anticipated between the action taken and the avoidance of the harm."37 Va. App. 45, 553 S.E.2d at 550 (quoting Buckley v. Commonwealth, 7 Va. App. 32, 33, 371 S.E.2d 827, 827-28 (1988)).
Applying these factors to the facts in Humphrey, the Court found there were sufficient facts in that record to require a jury instruction on the defense of necessity to a charged violation of Code 18.2-308.2.