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Fulton v. Municipality of Anchorage6/30/1999
4071 NOTICE Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited for any proposition of law, nor as an example of the proper resolution of any issue.
MEMORANDUM OPINION AND JUDGMENT
No. 4071
Appeal from the District Court, Third Judicial District, Anchorage, Gregory J. Motyka, Judge.
A jury convicted Lori J. Fulton of driving while intoxicated (DWI), a municipal misdemeanor. Fulton appeals, contending that her jury should have been instructed on the defense of justification by necessity. We affirm.
On the evening of December 29, 1997, Curtis Robin Doyle, the attendant of a Mapco gas station in Anchorage, saw a white car pull up to a gasoline pump. Two occupants, a man and a woman, got out of the car and began arguing; both appeared to be intoxicated. At one point, the man pulled the woman across the street. While Doyle called the police to report this disturbance, the man left the scene on foot; the woman, Fulton, returned to the car and got ready to drive away. Seeing this, Doyle went outside and told Fulton (who appeared to be under the influence of alcohol) that she should not drive, and that the police were already on their way to the scene. Fulton went inside the store with Doyle to await the police.
Anchorage Police Officer Mitchell Paige arrived at the Mapco station in response to Doyle's report of a disturbance involving a man, a woman, and a white vehicle with a specified license plate number. Paige found the white vehicle in the parking lot; the engine was running, but no one was inside it. In the Mapco station, Paige saw Fulton talking on the telephone. She appeared to have been crying and drinking.
When Paige asked Fulton about the disturbance, Fulton replied that she had had an argument with her boyfriend, who had left. Fulton did not appear to be injured, but she had an obvious odor of alcoholic beverages. When Fulton stated that she wanted to drive home to Eagle River, Paige administered the horizontal gaze nystagmus field sobriety test and a portable breath test to her. These tests indicated that Fulton was intoxicated. Accordingly, Paige warned Fulton not to drive. When Fulton insisted that she had had only two drinks, Paige told her that if she chose to drive he would arrest her for driving while intoxicated.
Paige offered to call a cab for Fulton to take her home, but Fulton stated she had no money for a cab. At that point, another patron at the Mapco station, Christopher VanRoten, offered to give Fulton a ride to Eagle River; Fulton accepted. Paige meanwhile parked the white vehicle (the engine was still running) in the Mapco parking lot and returned its keys to Fulton. Paige obtained VanRoten's name, birthdate, and work telephone number. In order to forestall the possibility of Fulton's returning to the Mapco station and retrieving her car, Paige instructed VanRoten that if Fulton asked VanRoten to let her out of the car anywhere besides Eagle River, VanRoten should call the Anchorage Police Department.
About ten minutes later, Paige was notified by dispatch that VanRoten had called. VanRoten reported that Fulton had asked him to drop her off at a bar less than two blocks away from the Mapco station. Paige immediately returned to the Mapco. He saw that the white vehicle was still parked in the parking lot, but he gave his card to Doyle (the attendant) and asked him to call the police if Fulton returned for her car.
About thirty minutes later, Paige
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