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David J. Scharen v. State of Alaska

March 18, 2011


Appeal from the District Court, First Judicial District, Juneau, Keith B. Levy, Judge. Court of Appeals No. A-10550 Trial Court No. 1JU-09-098 Cr

The opinion of the court was delivered by: Mannheimer, Judge.


The text of this opinion can be corrected before the opinion is published in the Pacific Reporter. Readers are encouraged to bring typographical or other formal errors to the attention of the Clerk of the Appellate Courts: 303 K Street, Anchorage, Alaska 99501 Fax: (907) 264-0878 E-mail: corrections at


Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.

David J. Scharen appeals his conviction for driving under the influence. Scharen argues that the trial judge committed error by refusing to instruct the jury on the defense of "necessity". For the reasons explained in this opinion, we conclude that the trial evidence fails to support a defense of necessity. In particular, the evidence, even when construed in the light most favorable to Scharen, fails to support the conclusion that Scharen had no reasonable alternative but to take control of a motor vehicle while intoxicated. We therefore affirm Scharen's conviction.

Underlying facts

In January 2009, Scharen and his wife attended a Juneau Ski Club fund- raising event that was held at a downtown bar, the Viking Lounge. (Scharen's wife's employer was a member of the ski club, and she was one of the people working at this fund-raiser.)

The Scharens arrived around 6:00 p.m., and over the course of the next hour, Scharen drank alcoholic beverages. Around 7:00 or 7:30, Scharen began to fall asleep, so his wife told him to go outside and wait for her in their minivan until the fund- raiser was over. Scharen's wife gave him the keys so he could get into the vehicle.

Scharen left the Viking Lounge and walked to the minivan. When he arrived at the vehicle, he got into the driver's seat, inserted the keys into the ignition, and started the engine (so that the vehicle would be warm; the outside temperature was 18 degrees). Scharen then deliberately went to sleep.

Around 9:00 p.m., a passerby saw Scharen sitting or lying unconscious in the driver's seat, inside the running vehicle. When the passerby was unable to rouse Scharen, he summoned the police. A police officer arrived and woke Scharen up by knocking on the window and shining a light into Scharen's eyes. Scharen stumbled out of the minivan; he smelled of alcoholic beverages, and he swayed while standing. The officer administered field sobriety tests to Scharen, and then he arrested Scharen for operating a motor vehicle under the influence. Scharen's breath test revealed that he had a blood alcohol level of .13 percent.

At trial, Scharen's lawyer asked the trial judge -- District Court Judge Keith B. Levy -- to instruct the jury on the defense of necessity. Judge Levy declined to give the proposed instruction because Scharen failed to present any evidence that he lacked reasonable alternatives to (1) leaving the bar, (2) deciding to sleep in the minivan, and (3) operating the vehicle's engine to stay warm. Here is the pertinent part of Judge Levy's ruling:

Scharen [has] failed to produce any evidence that [a] threat [of] imminent harm required him to leave the bar, go to his car, and start the engine. [The immediate difficulty confronting Scharen was that he] was falling asleep in the bar. But the theoretical social embarrassment caused by that situation did not create an emergency that required him to [assume control of a motor vehicle and] start the engine. He was not stranded in a vehicle without a sober driver or [without] alternatives to starting the engine. He was sitting in a warm bar in downtown Juneau. To the extent that there was any ... threat [of] imminent harm [because of the cold weather] when Scharen left the bar and entered his vehicle, he created that situation [by leaving the bar and going to sit in the vehicle].

Why we conclude that Scharen failed to present a triable issue as to whether his decision to assume control of the motor vehicle, and his decision to operate this vehicle (by turning on the engine), were justified by necessity

A criminal defendant is entitled to a jury instruction on the defense of necessity if the evidence, viewed in the light most favorable to the proposed defense, is sufficient to allow a reasonable fact-finder to conclude: (1) that the defendant committed the charged offense to prevent a significant evil; (2) that, given the circumstances (as the defendant reasonably perceived them), the defendant had no reasonable alternative -- no adequate way to avoid this significant evil except by committing the charged offense; and (3) that the harm threatened or caused by the defendant's crime was not disproportionate to the harm that the defendant sought to avoid by breaking the law. State v. Garrison, 171 P.3d 91, 94 (Alaska 2007).

It is a question of law whether the trial evidence (viewed in the light most favorable to the proposed necessity defense) was sufficient to support a decision in the defendant's favor on each of these three elements. In other words, an appellate court does not defer to the trial judge's assessment of whether the evidence was legally sufficient to justify a jury instruction on the ...

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