Background
Around 10:00 p.m. on April 25, 2021, Harbor Master Sean McGrorty observed Charles Lane’s skiff bounce off a docked boat as Lane attempted to dock at the Homer Port & Harbor. McGrorty confirmed that Lane was the operator. He then watched Lane drop off a visibly intoxicated female passenger, Jackie Eisenberg, who soon drove away in a truck with Lane in the passenger seat. McGrorty called 911 to report Eisenberg for drunk driving. About eight minutes later, Officer Tyler Jeffres stopped Eisenberg’s truck and Officer Charles Lee contacted Lane. Lee noticed watery eyes and an odor of alcohol, administered field sobriety tests, and observed Lane fail the horizontal gaze nystagmus and walk-and-turn tests. Lane was arrested for DUI. At the station, he refused the DataMaster breath test but requested an independent blood draw; that test returned a blood alcohol concentration of 0.174 percent — more than twice the 0.08 percent legal limit.
At trial, Lane’s defense did not dispute that he was intoxicated at arrest. Instead, the defense argued that Lane may have consumed alcohol as a passenger in the truck during the eight-minute window after he docked the skiff, meaning the blood test did not reflect his alcohol level while he operated the watercraft. The district court denied Lane’s request to instruct the jury that it could consider evidence of post-driving drinking as a potential defense. The jury convicted Lane of driving under the influence under the blood-alcohol-level theory (AS 28.35.030(a)(2)) and refusal to submit to a chemical test, and acquitted him of a criminal mischief count. He appealed, arguing the district court erred in refusing to give the post-driving-drinking defense instruction.
The Court’s Holding
Harmless error on the missing instruction. Writing for a panel of three, Chief Judge Allard affirmed. Alaska’s DUI statute preserves the post-driving-drinking defense: AS 28.35.030(s) expressly states that consumption of alcohol after operating a vehicle “may be used to raise” a defense to a DUI charge under the blood-alcohol-level theory. But to trigger an obligation on the trial court to instruct on that defense, a defendant must first produce “some evidence” of actual post-driving drinking — evidence that, viewed favorably to the defendant, would allow a reasonable juror to find for the defense. The court acknowledged that the “some evidence” bar is intentionally low and can be met by gaps or weaknesses in the prosecution’s case, not just affirmative defense evidence. Here, however, Lane offered no open containers, no witness who saw him drink after docking, and no expert on absorption rates. The only hook for the theory was the eight-minute gap between the harbormaster’s 911 call and the traffic stop — a window of opportunity, but not evidence. Because Lane never crossed the “some evidence” threshold, any error in declining to instruct the jury on the post-driving-drinking defense was harmless beyond a reasonable doubt.
Pattern instruction needs revision. The court also flagged a structural problem that will recur. Alaska’s current criminal pattern jury instruction for the blood-alcohol-level theory (AS 28.35.030(a)(2)) does not mention AS 28.35.030(s) or the post-driving-drinking defense. As written, the instruction tells the jury to determine only whether a chemical test taken within four hours of driving showed a BAC of 0.08 percent or more — with no guidance that the result can be attacked by showing the alcohol was consumed after driving. When a defendant properly raises the post-driving-drinking defense, submitting that bare instruction leaves the jury without the law it needs. The court called on the Criminal Pattern Jury Instructions Committee to revise the instruction and resolve the tension. Trial courts, the opinion warns, should err on the side of giving a requested defense instruction rather than withholding it when the “some evidence” call is close, to guard against reversal.
Key Takeaways
- Under AS 28.35.030(s), post-driving consumption of alcohol is a recognized statutory defense to an Alaska DUI charge under the blood-alcohol-level theory (AS 28.35.030(a)(2)), but a defendant must produce “some evidence” — more than a bare window of opportunity — before a trial court is required to instruct the jury on that defense.
- An eight-minute gap between watercraft operation and a traffic stop, with no containers found and no witness testimony of post-driving drinking, does not meet the “some evidence” threshold under Alaska law.
- The Court of Appeals has directed the Criminal Pattern Jury Instructions Committee to revise the blood-alcohol-level DUI pattern instruction to address its current tension with AS 28.35.030(s) in cases where the post-driving-drinking defense is properly raised.
- Trial courts should lean toward giving a defense instruction when the “some evidence” question is close; declining to give such an instruction creates appellate risk if the threshold analysis is later found flawed.
Why It Matters
Lane is the most direct Alaska appellate statement to date on how much evidence a DUI defendant needs to get a post-driving-drinking instruction in front of the jury. The “some evidence” standard is not heavy, and the court reaffirmed it can be cleared without the defendant testifying and without direct proof — gaps in the State’s own evidence may be enough. That makes the instruction attainable in many cases if defense counsel investigates thoroughly: physical evidence of beverages at the scene or along the route, a witness who saw the defendant drink after docking, or expert testimony explaining how a specific post-driving drink volume could skew a blood test result could each have made the difference here. Alaska criminal defense attorneys handling DUI cases involving watercraft — which arise regularly given the state’s extensive use of boats for personal transportation in coastal and rural communities — should evaluate the post-driving-drinking defense early and build the evidentiary foundation while memories are fresh.
The court’s call for a revised pattern jury instruction is equally significant for practitioners on both sides. Until the Criminal Pattern Jury Instructions Committee acts, the gap between the current instruction and AS 28.35.030(s) will continue to generate appellate arguments in cases where the defense is properly raised. Defense counsel should prepare a supplemental instruction tied to AS 28.35.030(s) whenever post-driving drinking is asserted and preserve the objection on the record if the instruction is refused. Prosecutors, conversely, should be prepared to demonstrate why “some evidence” is not met — pointing to the absence of containers, witnesses, or expert evidence — rather than relying on the current pattern instruction alone to foreclose the defense.