Alaska appeals court identifies DUI jury instruction tension in Homer case

The Alaska Court of Appeals affirmed a Homer man's DUI conviction Thursday but used the ruling to identify a tension in the state's standard jury instructions that could affect DUI prosecutions across Alaska.

Chief Judge Marjorie K. Allard wrote that current pattern jury instructions for the blood-alcohol-level theory of DUI under AS 28.35.030(a)(2) do not account for the statutory right under AS 28.35.030(s) to raise a post-driving drinking defense. "We take this opportunity, however, to address an underlying tension that exists in the current pattern jury instructions that should be corrected in cases where a defendant properly raises a defense of post-driving drinking," Allard wrote. The court encouraged the Criminal Pattern Jury Instructions Committee to revisit and revise those instructions.

The Case

The case began at the Homer Port and Harbor on the night of April 25, 2021, when Charles A. Lane's skiff struck a docked boat. A blood draw taken after his arrest showed a blood alcohol level of 0.174 percent, more than twice the legal limit of 0.08 percent. Lane argued he may have consumed alcohol after docking and before a traffic stop eight minutes later. The jury convicted him of driving under the influence and refusal to submit to a chemical test, and acquitted him of a fifth-degree criminal mischief charge stemming from an allegation that he spat in the patrol vehicle.

The appeals court found the failure to instruct the jury on the post-driving drinking defense was harmless because Lane did not meet the "some evidence" threshold required for that defense. The only evidence supporting the theory was the eight-minute gap between the harbormaster's 911 call and the traffic stop, during which Lane could theoretically have engaged in post-driving drinking. No alcohol containers were found in the vehicle, Lane did not testify, and no other evidence of post-driving drinking was presented. The court also cautioned that the "some evidence" test is not intended to be a heavy burden, and that trial courts should err on the side of giving instructions on a proposed defense.

The Instruction Flaw

The opinion identifies a tension between the current pattern instruction, which tells jurors the state must prove a blood alcohol level of 0.08 percent or more by a chemical test taken within four hours of driving, and the separate statutory right under AS 28.35.030(s) to rebut that test with evidence of post-driving drinking. The court clarified that once a defendant produces some evidence of post-driving drinking, the state must disprove it beyond a reasonable doubt. The four-hour chemical test window alone is not enough in cases where the defense is properly raised.

The court encouraged the Criminal Pattern Jury Instructions Committee to address and resolve the conflict between the current pattern instruction and AS 28.35.030(s), at least in cases where the post-driving drinking defense is properly raised. The opinion did not expressly order trial courts to supplement or modify the standard instruction in the interim, but the identified tension may require courts to address the issue case by case when the defense arises.