What Is an “Affirmative Defense” to a Criminal Charge in Utah?

Most situations that end with someone facing criminal charges are far from simple. Sometimes, an individual may have committed what would normally be considered a criminal act, but under the particular circumstances of their actions, they are permitted under the law. If you are arrested in such a scenario, in order to prove your innocence you must invoke what is known as an “affirmative defense” on your behalf.  Such defenses can be some of the trickiest to execute, and if you find yourself in a situation where you need to claim self-defense or some other affirmative defense to legally justify your actions, it is vital that you retain an experienced Utah criminal defense lawyer like those at Overson & Bugden as soon after your arrest as possible. Below, our battle-tested criminal lawyers explain what an affirmative defense is and how we can help you present such a defense to the court in the way most likely to get the charges against you downgraded or dismissed.

Types of Affirmative Defenses Allowed Under Utah Law

As noted in the intro paragraph, an affirmative defense occurs when you essentially admit that you did commit an act that, under typical circumstances, would constitute a crime, but that you did it in such a way that it was not in fact a crime. There are numerous examples of situations where affirmative defenses can apply. Some of the most common are detailed below, but keep in mind that this list is far from exhaustive. Any time that you have been arrested, you should reach out to a skilled criminal defense attorney like those at Overson & Bugden who can assess the specifics of your situation and make a determination about whether or not an affirmative defense may be necessary to invoke in your case.


One of the classic examples of justification being used as an affirmative defense is a scenario where a boat gets caught in a storm and, in order to save themselves and the vessel, the boater ties the boat to a private dock nearby to ride out the storm. Although this would normally be considered trespass, the actions were justifiable in the context of the potentially-deadly storm the boater was facing. Another example listed in the Utah code is a situation where a parent uses force to discipline a child. What normally may constitute assault, like a slap on the cheek, may be justifiable under the law if it is done by a parent, or someone acting in the legal role of a parent, as a way to discipline their own child. However, the parent’s actions must be reasonable, meaning that they cannot use excessive force causing the child serious bodily injury or death.


Perhaps the most well-known affirmative defense in a criminal case is self-defense. Under Utah law, a person is typically permitted to reply to force perpetuated upon them with force. For example, if you punch someone in the face, the fact that they punched you in the face first right before you responded with your punch will likely be a successfully affirmative defense to the charge of assault. However, the force you reply with must be reasonable in the circumstances. If someone pushes you slightly, for example, you cannot respond by taking out a gun and shooting them in the face. You can respond with no more force than is required to protect yourself from harm given the entire context of what occurred.

Defense of Property or Defense of Others

In certain scenarios, you are permitted to use force to protect your property, such as using a baseball bat to smack down a home invader. This also applies to situations where you see that some else is about to be harmed, such as watching a person run toward your friend with a knife, and tackling the person to save your friend from being stabbed. However, much like with self-defense, you cannot use more force than necessary given the context of the situation.

How Can a Skilled Defense Attorney Help Me with an Affirmative Defense in Utah?

After our skilled Salt Lake City pretrial release hearing attorneys work on getting you released from jail on little to no bail, we will turn our attention to getting the charges against you downgraded or dismissed. In certain cases, we may be able to demonstrate clearly to the prosecutor that an affirmative defense such as self-defense is almost certain to succeed at trial, and they in turn may be willing to dismiss the charges in the interest of justice. In other cases, the prosecutor may be willing to let you into a pre-trial diversion program, where your charges will be dropped if you complete the program successfully, or to downgrade your charges to something less serious, like from aggravated to simple assault, in exchange for you pleading guilty and saving the state the time and cost of a potentially complex trial.

Other times, the prosecutor may not be willing to offer a deal even in light of the affirmative defense evidence we have presented to them, or you may not be satisfied with the deal offered and wish to prove your innocence at trial. Our skilled trial lawyers at Overson & Bugden understand the nuances of presenting an affirmative defense, such as justification or self-defense, to a jury in a way they can clearly understand. We will leave no stone unturned fighting to convince the jury that the affirmative defense has been proven and to achieve a not guilty verdict on your behalf.

If You Have Been Charged with a Crime for Actions You Believe Were Justified, Call Our Skilled Utah Criminal Defense Lawyers Today

In many cases, while it may be true that you technically committed a crime like assault, you had a legally permissible reason for doing so. This is when an affirmative defense can come into play. If a prosecutor, judge, or jury agrees that all the elements of the affirmative defense are met, there is a good chance your charges will be dropped or you will be found not guilty. As such, it is vital to have an experienced criminal defense lawyer like those at Overson & Bugden by your side making that case. Call us today at (801) 758-2287 for a free consultation.