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Larson v. State9/15/2004
nce that he agreed with the results of the DataMaster test.
During trial, Larson argued that this evidence was incriminating because the State could argue to the jury that Larson "[was] essentially accepting the reading of the DataMaster." Larson asserted that because his decision to decline an independent test could be used to incriminate him, and because the State had not given him Miranda warnings before he made this statement, this statement should be excluded.
Judge Burbank ruled that Officer Stratford could testify about the offer of the test and Larson's decision not to obtain the test. But Judge Burbank also partially agreed with Larson and ruled that the State could not argue that Larson's decision to forego an independent test meant that he agreed with the results of the DataMaster.
Judge Burbank thus resolved Larson's objection. That is, the court prohibited the State from arguing that Larson, by declining a second chemical test, tacitly agreed with the results of the first test. On appeal, Larson does not argue that the State violated this ruling; rather, he claims that an inference of guilt could nevertheless have been "created in the minds of the jury" and that his choice "could seem to imply that [he] agreed with the results of the breath alcohol test." This argument is different than the one Larson made below, and Judge Burbank was never called upon to resolve the possibility that the jury might make this inference on its own. [FN3] Moreover, in Larson's case, this inference would have been harmless because Larson did not contest that he was intoxicated. He testified that he was asleep in his vehicle because he was too drunk to drive. We therefore reject Larson's claim that the district court violated Miranda and his right against self-incrimination by admitting evidence that he declined an independent test.
FN3. See Cheely v. State, 850 P.2d 653, 656 (Alaska App.1993) (claims not made in the trial court are not preserved for appeal).
The necessity defense
Larson also claims that Judge Burbank erred when he refused to instruct the jury on necessity. Larson wanted to defend against the charge of "driving" the vehicle while intoxicated by claiming that he was "operating" the vehicle while intoxicated. In other words, he wanted to argue to the jury that purposely falling asleep in a running vehicle was a defense to drunk driving. This claim is meritless.
To establish a necessity defense, a defendant must show that (1) the act charged was done to prevent a significant evil, (2) there was no adequate alternative, and (3) the harm caused was not disproportionate to the harm avoided. [FN4]
FN4. See Cleveland v. Anchorage, 631 P.2d 1073, 1078 (Alaska 1981) (citing Nelson v. State, 597 P.2d 977, 979 (Alaska 1979)); Bird v. Anchorage, 787 P.2d 119, 121 (Alaska App.1990).
Here, Judge Burbank ruled that there were adequate alternatives to Larson operating his vehicle while he was intoxicated. Judge Burbank found that "Mr. Larson had several alternatives other than going into his truck with the ignition key, starting it, and sleeping with the engine running" including "calling a friend, ... talking to friends at the bar, calling a cab, ... or walking to a motel or anything like that[.]" From our review of the record, Judge Burbank could reasonably conclude that Larson had adequate alternatives such that he was not entitled to a necessity instruction.
Larson's claim regarding his sentence
*3 Finally, Larson argued in his opening brief that he should not have been sentenced as a second offender because his prior conviction occurred more than ten years before his present offense. But in his reply brief, Larson concedes that Ault v. State [FN5] resolves this issue against him.
FN5. 73 P.3d 1248 (Alas
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