Opinion
Court of Appeals No. A-11766 No. 6581
02-07-2018
DAVID F. THOMAS, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Susan Orlansky, Reeves Amodio, LLC, Anchorage, for the Appellant. Tamara E. de Lucia, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 1JU-12-1432 CR
MEMORANDUM OPINION
Appeal from the Superior Court, First Judicial District, Juneau, Philip M. Pallenberg, Judge. Appearances: Susan Orlansky, Reeves Amodio, LLC, Anchorage, for the Appellant. Tamara E. de Lucia, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge ALLARD.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
David F. Thomas was convicted of driving under the influence after he was found intoxicated and asleep in the driver's seat of his car with the engine running. At trial, Thomas sought to raise the defense of necessity, arguing that he was justified in starting his car while he was intoxicated because he needed to operate the car's heaters to avoid potentially life-threatening hypothermia.
The superior court refused to instruct the jury on the defense of necessity, concluding that Thomas's offer of proof failed to raise "some evidence" on all of the required elements of this affirmative defense. For the reasons explained here, we agree with the superior court and affirm Thomas's conviction.
Background facts and prior proceedings
A defendant is entitled to a jury instruction on the defense of necessity if he presents "some evidence" of each of the elements of the defense. "'Some evidence' is evidence that, viewed in the light most favorable to the defendant, would allow a reasonable juror to find in the defendant's favor on each element of the defense." In accordance with this standard, we review the facts in the light most favorable to Thomas.
Greenwood v. State, 237 P.3d 1018, 1022 (Alaska 2010) (internal citations omitted).
Id. (quoting McGee v. State, 162 P.3d 1251, 1261 (Alaska 2007)).
Thomas left the Viking Bar in downtown Juneau in the early morning hours of December 8, 2012, after drinking a number of beers. He knew he was too intoxicated to drive, but he had no money for a cab and there was nobody he could call to pick him up because he had "worn out his welcome" with all of his family and friends. Thomas was in the middle of a divorce and was temporarily homeless.
Thomas had previously been convicted of driving under the influence and he was concerned that he might be convicted of driving under the influence again if he got in his car while he was intoxicated. He therefore decided to sleep in a nearby covered parking garage, next to transformers that generated heat. Although Thomas's car contained a sleeping bag, blankets, and extra clothes, he did not take any of these supplies to the parking garage. The temperature was approximately twenty-five degrees Fahrenheit and it had snowed the evening before.
A few hours later, Thomas woke up. According to his offer of proof, he was partially numb and shivering uncontrollably, and he was fearful that he was becoming hypothermic. Thomas went back to his car and climbed into the driver's seat. He then started the engine, turned on the heat, and fell asleep.
Juneau Police Officer Sterling Salisbury was on patrol that night. Officer Salisbury pulled into the parking lot at about 4:45 a.m. When he pulled into the lot, he noticed Thomas's parked car with the engine running. Thomas was in the driver's seat asleep. There was still snow on the hood of Thomas's car — which suggested that the engine had not been running for long. Officer Salisbury observed clothes, blankets, and a sleeping bag in the back seat of the car. None of these items were being used by Thomas. Officer Salisbury knocked on the window to wake Thomas up. When Thomas opened the car door, Officer Salisbury immediately smelled alcohol in the car and on Thomas's breath. During the contact that followed, Officer Salisbury also observed that Thomas's speech was slow and slurred, that his eyes were bloodshot and watery, and that he could not stand up without swaying.
Thomas admitted to Officer Salisbury that he had been drinking earlier in the evening. Thomas stated that he had stopped drinking six to eight hours earlier and had been sleeping ever since. Officer Salisbury administered field sobriety tests, which Thomas failed. Officer Salisbury then placed Thomas under arrest for driving under the influence. A breath test administered at the police station revealed a blood-alcohol level of .181 percent, more than twice the legal limit of .08 percent.
Because Thomas had prior convictions, he was indicted for felony driving under the influence.
AS 28.35.030(n).
Prior to trial, Thomas filed a notice indicating that he intended to rely on the defense of necessity. After the State presented its only witness, Officer Salisbury, Thomas's attorney made a written offer of proof on Thomas's expected testimony in support of the defense. After reviewing the offer of proof, the trial court concluded that Thomas had not offered sufficient evidence to instruct the jury on the necessity defense. Based on the judge's ruling, Thomas chose not to testify at trial.
The jury subsequently convicted Thomas of driving under the influence and, based on a stipulation that he had prior convictions, the court convicted Thomas of felony driving under the influence.
Thomas now appeals the court's refusal to instruct the jury on the affirmative defense of necessity.
Did the superior court err in refusing to instruct the jury on Thomas's proposed defense of necessity?
"The rationale behind the necessity defense is one of public policy: the law ought to promote the achievement of higher values at the expense of lesser values, and sometimes the greater good for society will be accomplished by violating the literal language of the criminal law." Unlike self-defense, necessity is an affirmative defense, and the defendant bears the burden of proving this defense at trial by a preponderance of the evidence.
Greenwood, 237 P.3d at 1026 (internal quotation marks omitted); see also Nelson v. State, 597 P.2d 977, 979 (Alaska 1979); see generally 2 Wayne R. LaFave, Criminal Law § 10.1, at 116 (2nd ed. 2003).
State v. Garrison, 171 P.3d 91, 94 (Alaska 2007) (internal citations omitted); see also AS 11.81.320.
The defense of necessity includes the following elements: "(1) [t]he act charged must have been done to prevent a significant evil; (2) there must have been no adequate alternative; (3) the harm caused must not have been disproportionate to the harm avoided." When the defendant is accused of a continuing offense, such as drunk driving, he "must also show some evidence that (4) he stopped violating the law as soon as the necessity ended." (This fourth element was not contested by the State in this case.)
Greenwood, 237 P.3d at 1022 (internal citations omitted).
Id.
In order to receive the benefit of this defense, the defendant must have "reasonably believed" at the time of acting that the first, second, and fourth elements were present. The defendant's value judgment concerning the third element, whether "the reasonably foreseeable harm resulting from the violation would be less than the harm resulting from compliance with the law," is evaluated objectively using the facts as the defendant reasonably perceived them.
Id.
Id.
If a defendant presents "some evidence" of each of these elements, the defendant is entitled to a jury instruction on the necessity defense. "Some evidence" is evidence that, when viewed in the light most favorable to the defendant and with all reasonable inferences drawn therefrom, would allow "a reasonable juror to find in the defendant's favor on each element of the defense."
Id.
Id. (quoting McGee, 162 P.3d at 1261).
The "some evidence" burden is not a heavy one — as long as the defendant produces some evidence to support each element of the defense, "any weakness or implausibility in that evidence is irrelevant" and it becomes "a matter for the jury, not for the court." As both this Court and the Alaska Supreme Court have repeatedly emphasized, "a strong argument can be made that a trial judge should err on the side of giving instructions" on a proposed defense.
Id. (internal citations omitted).
Id. (quoting Seibold v. State, 959 P.2d 780, 782 (Alaska App. 1998)); see also Folger v. State, 648 P.2d 111, 114 n.3 (Alaska App. 1982).
In the current case, Thomas asserts that his written offer of proof provided "some evidence" of each of the required elements, and the superior court therefore erred in refusing his requested necessity instruction. According to Thomas, his offer of proof showed that there was some evidence that (1) Thomas turned on the engine of his car while intoxicated because he reasonably believed that he faced a significant evil — potentially life-threatening hypothermia; (2) Thomas reasonably believed that he had no adequate alternative to operating his car while intoxicated because there were no businesses open at that time of night, he had no money for a taxi, and he had "worn out his welcome" with his family and friends; and (3) viewed objectively, the harm caused by Thomas sitting drunk in an unmoving car with the motor and heaters on was not disproportionate to the harm that would have resulted had Thomas succumbed to the full effects of hypothermia.
The superior court agreed with Thomas that hypothermia was a significant evil. The court also accepted that there was "some evidence" based on the offer of proof that Thomas reasonably believed that he was facing potential hypothermia. But the court rejected Thomas's claim that he reasonably believed that there was no adequate alternative to getting into his car and operating it while he was intoxicated. The court pointed out that Thomas was in the middle of downtown Juneau with emergency help and police assistance only a short distance away. The court also noted that when a person is in a life-threatening situation such as the one claimed here, they call 911 and the fire department rescues them or the police help them.
The court acknowledged that there were probably reasons why Thomas — who was homeless and heavily intoxicated — would not want to call the police in these circumstances. But the court concluded that it was simply not reasonable "to say that it's necessary to operate a motor vehicle while intoxicated in order to avoid the necessity to call upon the police for help in a life-threatening situation."
On appeal, Thomas argues that the superior court's analysis was flawed because it failed to consider the circumstances as they would reasonably have appeared to Thomas at the time. In particular, he argues that the court "failed to consider that Mr. Thomas's perceptions of available alternatives likely was affected by his hypothermia." Thomas points out that hypothermia "can affect judgment and perception," and he asserts that "his fear of freezing to death may have clouded his judgment and blinded him to various alternative courses of action that he might have seen had he not been so cold and afraid."
We agree, as a general matter, with the larger point that Thomas is making. Because necessity defenses are typically predicated on emergency situations, judges must be careful to distinguish between the options that may seem obvious to them from the warmth and security of their courtroom as opposed to the options that would reasonably have occurred to a defendant who was operating under very different circumstances. Whether the defendant reasonably (but perhaps mistakenly) believed that there were no adequate alternatives to breaking the law turns on the circumstances as they were reasonably perceived by the defendant at the time.
Greenwood, 237 P.3d at 1024; Garrison, 171 P.3d at 94; Cleveland, 631 P.2d at 1078.
Here, however, Thomas did not offer any evidence to suggest that his ability to perceive the options available to him was impaired by the circumstances that he found himself in. In his offer of proof, Thomas referred to various physical effects that he was experiencing, but he never suggested that he was also experiencing any cognitive effects from the purportedly incipient hypothermia. To the contrary, Thomas's written offer of proof was predicated largely on his assertion that he was thinking rationally at the time, that he carefully ran through all the options that he could think of before getting into the car, and that he reasonably rejected each one of these options as inadequate. The offer of proof stated:
Mr. Thomas will testify about his thought process at the time. He did not have enough money in his pocket to call for a taxi. He was not in a position to call any of his relatives to come get him ... he did not know of a single establishment that was open at that time.At no point in the offer of proof or in his attorney's arguments did Thomas allege that the effects of hypothermia had impaired his cognitive function and that this impairment (separate from the effects of the heavy intoxication he was also experiencing) needed to be considered as part of the proposed necessity defense. Thus, because Thomas made no arguments and presented no evidence that he was suffering from such cognitive impairments, we conclude that the trial judge did not err in failing to take such alleged impairments into account.
We therefore agree with the judge that, given the circumstances as they were described in the offer of proof, no reasonable juror could have concluded that it was reasonable for Thomas to decide to operate his car while highly intoxicated rather than to first call for emergency assistance that was close at hand and likely to arrive soon.
Under Alaska law, a person who commits either operating or driving while intoxicated is guilty of the same crime and subject to the same penalties. We acknowledge that there is a significant difference in the risk posed to public safety caused by a person who is using his running vehicle primarily as heated shelter, without any intent to put the car into motion, and a person who actually drives his car while intoxicated. That said, Thomas's decision to operate his car while highly intoxicated still posed a risk to public safety that was not inconsequential. As we have previously explained, a person who knowingly puts themselves in actual physical control of a dangerous instrument like a motor vehicle while they are heavily intoxicated is unreasonably relying on the fact that, in their impaired state of intoxication, they will not suddenly act to exercise that control and begin driving. This is particularly true in circumstances, such as the current one, where the defendant chooses to fall asleep in the driver's seat with immediate access and control of the motor vehicle. The foreseeable risk in such situations is that the intoxicated person may suddenly wake up and believe (in their still intoxicated state) that they are now fine to drive and there would be no impediment to immediately doing so. The same degree of risk would not be present, however, if the defendant took steps to minimize such a possibility — for example, by climbing into the back seat or creating other impediments to exercising direct control over the vehicle.
See AS 28.35.030 ("A person commits the crime of driving under the influence of an alcoholic beverage ... if the person operates or drives a motor vehicle.").
See, e.g., Shearer v. Municipality of Anchorage, 4 P.3d 336, 339 (Alaska App. 2000) ("a DWI suspect does not have to actually be driving the vehicle in order to pose imminent danger to the public"); Jacobson v. State, 551 P.2d 935, 938 (Alaska 1976) ("[a]n intoxicated person seated behind the steering wheel of a motor vehicle is a threat to the safety and welfare of the public"); Miles v. State, 2012 WL 3870841, at *3 (Alaska App. Sept. 5, 2012) (unpublished) ("[T]his standard reflects the policy judgment that society has a strong enough interest in discouraging intoxicated people from being in physical control of a vehicle to make that conduct a crime, even if the person never actually drives.").
See Shearer, 4 P.3d at 339; Jacobson, 551 P.2d at 938.
Lastly, we note that this case potentially raises the legal question of whether a defendant should be foreclosed from raising a necessity defense if the emergency is of the defendant's own making. In Scharen v. State, we suggested, but did not definitively decide, that a defendant might be foreclosed from raising a necessity defense under these types of circumstances if he knowingly put himself in a situation where driving or operating a motor vehicle while intoxicated would become necessary. The State argues that we should apply this principle to Thomas's case because, according to the State, Thomas created his own emergency by making the original poor decision to sleep outside in twenty-five degree weather, without taking advantage of the sleeping bag and extra clothes that he had in his car. We conclude that, as in Scharen, we need not reach this issue in Thomas's case because we are affirming the trial court's ruling on other grounds.
Scharen v. State, 249 P.3d 331, 333-34 (Alaska App. 2011).
Id. --------
Conclusion
The judgment of the superior court is AFFIRMED.