## Facts

- Dominic Allen was stopped at night for driving without headlights.
- The trooper discovered Allen’s driver’s license was suspended; Allen was arrested and charged with driving with a suspended license and violating conditions of release.
- Allen sought to present the affirmative defense of necessity, asserting his mother had been driving but became fatigued and experienced double vision.
- Allen claimed he drove to a liquor store where he expected to find a telephone to call for medical assistance.
- At an evidentiary hearing, Allen’s mother testified she did not seek medical attention that night and that a nearer establishment (a strip club) existed closer than the liquor store.
- The trial judge concluded Allen had a reasonably available legal alternative—leaving his mother in the car and walking to the nearer establishment to seek help—so the judge refused a necessity instruction and limited presentation of the defense.
- Allen was convicted and appealed.

## Issues

1. Whether the trial court erred by refusing to instruct the jury on the necessity defense and effectively barring the defense where the court found an adequate, reasonably available legal alternative to driving with a suspended license.

## Decision

- The Alaska Court of Appeals affirmed.
- The court held the evidence proffered by Allen did not warrant a necessity instruction because an obvious and adequate lawful alternative existed (walking a short distance to seek help).
- The court upheld the trial judge’s authority to screen the defense and deny a jury instruction absent “some evidence” supporting each element of necessity.

## Legal Principles

- Under Alaska law, necessity requires: (1) conduct undertaken to prevent a significant evil; (2) no adequate, reasonably available legal alternative; and (3) proportionality between the harm caused and the harm avoided.
- If an “obvious and adequate legal alternative” exists, the necessity defense fails as a matter of law.
- Trial courts may preclude a necessity instruction unless the defendant produces “some evidence” on each element, including the absence of adequate legal alternatives.

## Conclusion

The court affirmed Allen’s convictions because, even crediting his emergency explanation, the record showed a reasonably available lawful alternative to driving with a suspended license, so the necessity defense could be rejected by the judge and withheld from the jury.


Allen v. State, 123 P.3d 1106 (Alaska Ct. App. 2005)