Takeaway
In short, this case holds that when a defendant offers some evidence of an immediate threat, no reasonably perceived adequate alternative, proportionality, and prompt cessation of a continuing offense, the jury—not the judge—must decide the necessity defense.
After drinking wine with her former boyfriend, Jay Way, Jennifer Greenwood testified that she heard him threaten to burn down both her camper and his parents’ home and say that there would be no witnesses. She saw him throw lit candles in the camper, watched him strike her dog with a two-by-four, and feared for her safety. She screamed for help, called 911, and then drove her van less than a mile: first toward Way’s parents’ darkened home to warn them, then a few blocks farther to a well-lighted location where she waited for and flagged down responding troopers. Her blood-alcohol test later registered 0.134 percent, and she was charged with felony driving under the influence.
The superior court allowed Greenwood to present evidence supporting necessity but refused to give a necessity instruction. It concluded that any necessity ended when she reached Way’s parents’ house, so her continued driving was unjustified. A jury convicted Greenwood. The court of appeals affirmed, reasoning that she had not shown danger continued after she reached the parents’ home and that she could have remained in her locked van while honking for help. The Alaska Supreme Court granted review.
Issue #1
Whether Greenwood presented some evidence that she drove under the influence to prevent a significant evil.
Holding
Yes. Greenwood produced some evidence that her driving was intended to avert significant threats to her own safety, Way’s parents, and both residences.
Reasoning
A defendant seeking a necessity instruction must offer some evidence that the charged act was done to prevent a significant evil. The lower courts defined the threatened harm too narrowly as merely a possible arson at Way’s parents’ house. Greenwood’s testimony supported a broader and more immediate set of dangers: Way allegedly threatened to burn property, suggested he would leave no witnesses, threw lit candles in her camper, and struck her dog with a board.
Those facts could permit a reasonable juror to find that Greenwood was trying to avoid physical injury to herself, arson to her home and Way’s parents’ home, and harm to Way’s parents. These are significant harms arising from alleged illegal human conduct, the kind of danger the necessity doctrine can address.
Greenwood’s conduct also supported an inference that she genuinely and reasonably perceived an emergency when she acted. Before driving, she screamed for assistance and called 911; after driving, she stopped voluntarily and flagged down the troopers despite the obvious risk that they would discover her intoxication. Her contemporaneous efforts to obtain police help distinguished this case from an after-the-fact effort to manufacture a justification.
Issue #2
Whether Greenwood presented some evidence that no adequate legal alternative existed and that she stopped driving as soon as the necessity ended.
Holding
Yes. Her testimony created jury questions about whether she reasonably believed she could not safely stop at Way’s parents’ home and whether the need to drive continued until she reached the well-lighted place where she awaited the troopers.
Reasoning
For a continuing offense such as driving under the influence, necessity requires some evidence both that no adequate alternative existed and that the defendant ceased violating the law when the necessity ended. These questions overlap because an adequate alternative that becomes available during the offense may end the necessity. The relevant inquiry is what Greenwood reasonably believed at the time, even if her belief was later shown to be mistaken.
At the instruction stage, the defendant’s burden is only to produce “some evidence”—evidence from which a reasonable juror could find for her when the evidence is viewed in her favor. Courts may not reject a defense simply because the defendant’s account seems weak or implausible; credibility, factual weight, and the ordinary reasonableness of her actions are generally matters for the jury.
A court may deny a necessity instruction where the record establishes a clear legal alternative as a matter of law. But the proposed alternative identified by the court of appeals—remaining in a locked car outside Way’s parents’ darkened house and honking until they awoke—was not so clearly adequate that it eliminated the defense. Greenwood testified that Way lived there, might return there on his four-wheeler, had recently acted violently, and had access to the two-by-four he used against her dog.
Her conduct supplied some evidence that she responded to the emergency in a limited way. She first tried yelling and calling 911; she drove on a back road to avoid traffic and Way; she honked outside the parents’ home; and she then drove only a few additional blocks to a well-lighted place where responding police could locate her. A reasonable juror could conclude that she believed she was unsafe waiting at the darkened residence and that the necessity ended when she reached the location where she stopped and awaited the troopers.
Issue #3
Whether Greenwood presented some evidence that the foreseeable harm from her drunk driving was not disproportionate to the harm she sought to avoid.
Holding
Yes. Viewing the facts as Greenwood reasonably perceived them, a juror could find that the limited additional driving was not disproportionate to the threatened physical and property harms.
Reasoning
The proportionality element is assessed objectively, but against the facts as the defendant reasonably perceived them. The court therefore had to consider not only the prospect of arson, but also Greenwood’s perceived risk of physical injury or death from Way’s alleged threats and aggression, along with possible harm to his parents and substantial property damage.
The court recognized that drunk driving presents a serious danger to the public and that proportionality turns on foreseeable harm rather than the absence of an actual accident. But Greenwood offered evidence that she had exhausted more obvious alternatives, drove less than one mile in total, used a back road, limited her speed to about thirty-five miles per hour, and continued only a few blocks beyond Way’s parents’ house to reach a lighted place where she could meet the troopers.
Given the low “some evidence” threshold, the court could not say as a matter of law that the risk from those last few blocks of impaired driving outweighed the immediate harms Greenwood reasonably feared. The jury, rather than the judge, had to decide whether her value judgment was correct. Because she presented some evidence on all four requirements, she was entitled to a necessity instruction and a new trial.