Charles A. Lane v. State of Alaska

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NOTICE
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
CHARLES A. LANE,
Appellant,
V.
STATE OF ALASKA,
Appellee.
Court of Appeals No. A-14390 Trial Court No. 3HO-21-00156 CR
OPINION
No. 2829-July 2, 2026
Appeal from the District Court, Third Judicial District, Homer, Bride Seifert, Judge.
Appearances: Monique Eniero, Morse Khimani & Eniero, Spokane, Washington, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Madison M. Mitchell, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Stephen J. Cox, Acting Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Terrell, Judges.
Judge ALLARD.
Charles A. Lane was convicted, following a jury trial, of driving under the influence and refusal to submit to a chemical test after the skiff he was piloting collided

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with another boat while he was attempting to dock in Homer.1 On appeal, Lane argues
that the district court erred in denying his request to instruct the jury that consuming
alcohol after driving a watercraft could be a potential defense against a charge of driving
under the influence.2
For the reasons explained here, we conclude that any error in failing to
instruct the jury on Lane’s chosen defense was harmless beyond a reasonable doubt
because Lane presented no evidence to support his 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.
Factual background
Around 10:00 p.m. on April 25, 2021, Harbor Master Sean McGrorty
observed a skiff enter the Homer Port & Harbor and “bounce off of the cowling of a
couple of outboards of a boat that was parked.” McGrorty drove down to the skiff to
look at the damage to the docked boat and to get the phone number of the individual
piloting the skiff to make an accident report. McGrorty confirmed with Lane that he
was piloting the skiff that made contact with the docked vessel.
McGrorty observed Lane let a female passenger off on the harbor bank.
McGrorty noticed that the woman was stumbling, and, despite being around one
hundred feet from a restroom, “her pants were around her ankles and she was urinating
in a ditch.” At trial, McGrorty testified that he could tell the woman was intoxicated
1 AS 28.35.030(a)(2) and AS 28.35.032(a), respectively. Lane’s final judgment states
that he was convicted of driving under the influence under subsection (a)(1), not (a)(2), but
this is a typographical error — Lane’s jury was instructed on the elements of (a)(2), not
(a)(1).
2 See AS 28.35.030(s).

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and that he was “more concerned about her” than about Lane. McGrorty observed the
woman get into the driver’s seat of a truck and drive to the top of the boat launch ramp.
Lane got in the passenger’s seat of the woman’s truck. McGrorty called law
enforcement to report the woman for driving the truck while intoxicated.
Approximately eight minutes after McGrorty’s 911 call, Homer Police
Officer Tyler Jeffres observed a truck matching McGrorty’s description. The truck was
crossing the fog line and did not have lights on its trailer. Officer Jeffres initiated a
traffic stop and made contact with the female driver, Jackie Eisenberg, while another
officer, Officer Charles Lee, spoke with Lane, who was sitting in the front passenger
seat.
Officer Lee testified that when he made contact with Lane, he noticed that
Lane had “watery eyes,” and he requested that Lane roll down the passenger window.
According to Officer Lee, “after several requests [Lane] ended up opening the door.”
When the door was opened, Officer Lee immediately smelled an odor of alcohol.
Officer Lee confirmed that Lane had been the driver of the skiff and that
he and Eisenberg were on their way back from Seldovia. Officer Lee testified that Lane
“appeared to be highly intoxicated” and he requested Lane step out of the vehicle to
complete field sobriety tests. Lane admitted to drinking two drinks in Seldovia an hour
or two earlier.
Lane initially agreed to participate in the field sobriety tests. Lane failed
the horizontal gaze nystagmus and the walk-and-turn tests. Officer Lee then began to
conduct the one-leg stand test, but Lane refused to continue further testing and instead
“turned around and placed his hands behind his back in apparent resignation to arrest.”
Because he “believed Mr. Lane was under the influence of alcohol and was impaired
while he was operating the boat,” Officer Lee arrested Lane for driving under the
influence.
At the police station, Lane refused to provide a breath sample for the
DataMaster. However, he requested an independent blood draw. The blood draw

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revealed a blood alcohol level of .174 percent — i.e., more than twice the legal limit of
.08 percent.
Ultimately, Lane was charged with driving under the influence, refusal to
submit to a chemical test, and fifth-degree criminal mischief for allegedly spitting in
the patrol vehicle.3
Prior proceedings
At trial, Lane’s attorney did not contest that Lane was intoxicated at the
time of arrest. But the defense attorney asserted that it was possible that Lane and
Eisenberg were drinking in the truck after Lane had already parked the skiff and that it
was this alleged post-driving drinking that could have accounted for the later over-the-
limit blood alcohol test. In other words, the defense attorney argued that Lane’s blood
alcohol level was not over .08 at the time he was driving the skiff and that it was his
post-driving drinking in the truck that accounted for his over-the-limit blood test.
At trial, however, the State established that there was only eight minutes
between the time of the harbormaster’s 911 call and the traffic stop and therefore limited
opportunity for any post-driving drinking. Both officers also testified that they did not
find any alcohol bottles or cans in Eisenberg’s truck. (Officer Jeffres acknowledged,
however, that they did not go back to check the road along Eisenberg’s route for
disposed bottles or cans.) Lane did not testify.
After the close of evidence, the prosecutor moved for a protective order
seeking to preclude Lane’s attorney from arguing that Lane had engaged in after-driving
drinking. The prosecutor argued that Lane should not be allowed to argue this theory
because there was “no evidence” supporting it. The district court denied the motion for
a protective order, although it noted that the prosecutor could point out that there was
no evidence supporting this claim of post-driving drinking.
3 AS 28.35.030(a)(1), AS 28.35.032(a), and AS 11.46.486(a)(1), respectively.

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During the State’s closing argument, the prosecutor argued to the jury that
they had to consider whether Lane “knowingly operate[d] a motor vehicle; and was he
over .08 at the time that he did so? Or actually, no, not even at the time that he did so.
Within four hours.”
Lane objected to the reference to four hours, arguing that the State was
required to prove that he was over the legal limit at the time he operated the skiff.
After reading Valentine v. State,4 the court overruled Lane’s objection,
reasoning that the caselaw was clear that there was criminal liability if the person’s
blood alcohol is .08 percent “at the time of driving or within . . . four hours.” The court
therefore ruled that the prosecutor’s statement that the State had to prove that Lane had
a blood alcohol content of .08 percent or more within four hours of operating the skiff
was a correct statement of the law. 5
Lane continued to object. He argued that the delayed-absorption defense
at issue in Valentine was distinct from a post-driving-drinking defense, and he asserted
that the prosecutor was misstating the law in an effort to eliminate his chosen defense.
The district court overruled Lane’s objection, noting that there was “no evidence . . .
that Mr. Lane drank between the [harbor] and the stop.”
At this point, the prosecutor realized that the jury had been instructed with
a version of the DUI statute that pre-dated the legislative changes discussed in
Valentine.6 The court obtained the pattern jury instruction based on the current statute,
and then reread the elements instruction to the jury with the current pattern jury
instruction. The new instruction stated as follows:
4 Valentine v. State, 215 P.3d 319 (Alaska 2009).
5 As we explain later in the opinion, this is an incomplete description of the law in
cases where the defendant has properly raised a defense of post-driving drinking.
6 Valentine, 215 P.3d at 322-24.

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To prove that the defendant committed this crime [of driving
under the influence], the state must prove beyond a
reasonable doubt each of the following elements:
(1) the defendant knowingly drove or operated a motor
vehicle; and
(2) the defendant’s blood contained 0.08 percent or more by
weight of alcohol or 80 milligrams or more of alcohol per
100 milliliters of blood as determined by a chemical test
taken within four hours after the alleged driving or
operating.[7]
Lane objected to the updated instruction, arguing that it did not allow for
a post-driving-drinking defense. Lane then requested that the court instruct the jury that
if it found that Lane drank after driving the boat, the jury could “consider that as
evidence of him not being guilty of the crime of DUI.”
The prosecutor objected to the proposed instruction, and the court
declined to give it, noting that Lane was free to argue this point during closing
argument.
During the defense closing argument, Lane’s attorney argued that there
was reasonable doubt in his case because it was likely that Lane drank after he operated
the boat. The attorney argued that the officers did not do a “whole search” of
Eisenberg’s truck and that they failed to take pictures proving that there were no alcohol
containers in the vehicle.
7 The prior pre-Valentine instruction stated, in relevant part:
To prove that the defendant committed this crime, the state must prove
beyond a reasonable doubt each of the following elements:
(1) the defendant knowingly drove or operated a motor vehicle; and
(2) at the time the defendant drove or operated the motor vehicle, the
defendant’s blood contained 0.08 percent or more by weight of alcohol in
his blood or 80 milligrams or more of alcohol per 100 milliliters of blood
as determined by a chemical test taken within four hours after the alleged
driving. (Emphasis added.)

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At one point, the defense attorney began to argue that “what the State has
to prove beyond a reasonable doubt is that [Lane] didn’t get drunk somewhere between
when he got off the . . . boat [and his chemical test].” The prosecutor objected, arguing
that the defense was improperly creating a new element of the crime. The court agreed
and sustained the objection.
In rebuttal, the prosecutor argued that the State had proven beyond a
reasonable doubt all of the elements of driving under the influence, and he asserted that
there was no evidence supporting the claim that Lane drank after he operated the boat.
The prosecutor stated:
So the alternative theory that [Lane] was drinking at some
time within the minutes between the harbor and [the location
of the traffic stop] enough to become .174 is not a reasonable
doubt, ladies and gentlemen. It’s not reasonable at all. And
additionally, we have seen literally no evidence of that
beyond a claim by the [defense] attorney, which again, is not
evidence. There is simply no evidence in the record of any
kind that there was even alcohol available for Mr. Lane to
drink.
Following deliberations, the jury convicted Lane of driving under the
influence and refusal to submit to a chemical test. The jury acquitted Lane of the
criminal mischief charge.
This appeal followed.
Overview of relevant DUI law
There are two different legal theories under which a person can be found
guilty of driving or operating under the influence under Alaska law: the “under-the-
influence theory” under AS 28.35.030(a)(1) and the “blood-alcohol-level theory” under
AS 28.35.030(a)(2).8
8 See Valentine, 215 P.3d at 323-24.

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Under AS 28.35.030(a)(1) (the under-the-influence theory), a defendant
is guilty of driving or operating under the influence if they drove or operated a motor
vehicle or watercraft “while under the influence of an alcoholic beverage, intoxicating
liquor, inhalant, or any controlled substance, singly or in combination.” Prosecutions
under this subsection require the State to prove beyond a reasonable doubt that the
defendant was under the influence at the time of driving. This can be proved through
evidence like indicia of intoxication, poor driving, failed field sobriety tests, and the
presumptions contained in AS 28.35.033(a)(3).9
Prior to 2004, prosecutions under AS 28.35.030(a)(2) (the blood-alcohol-
level theory) required proof that that the defendant’s chemical test was .08 or more at
the time of driving.10 In 2004, however, the legislature amended the statute to eliminate
a defendant’s right to bring a delayed-absorption defense.11 A delayed-absorption
defense (also described as the “big gulp” defense) is basically a claim that the post-
arrest chemical test did not accurately reflect the person’s blood alcohol level at the
time of driving because of the delay between a person’s consumption of alcohol and the
9 AS 28.35.033(a)(3) provides: “If there was 0.08 percent or more by weight of
alcohol in the person’s blood, or 80 milligrams or more of alcohol per 100 milliliters of the
person’s blood, or 0.08 grams or more of alcohol per 210 liters of the person’s breath, it
shall be presumed that the person was under the influence of an alcoholic beverage.” In
other words, a blood alcohol test result of .08 percent or higher gives rise to a presumption
that a defendant was under the influence at the time they were driving.
10 See former AS 28.36.030(a)(2) (pre-July 2004 version).
11 SLA 2004, ch. 124, §§ 25, 27. The 2004 legislation was also intended to overrule
our decision in Conrad v. State, which had recognized the delayed absorption defense and
held that, under the blood-alcohol-level theory, the State was required to prove that the
defendant’s blood alcohol content was over .08 at the time of driving. See Conrad v. State,
54 P.3d 313, 314-15 (Alaska App. 2002), superseded by statute, ch. 124 §§ 25, 27,
SLA 2004, as recognized in Valentine v. State, 215 P.3d 319, 322-24 (Alaska 2009).

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absorption of alcohol into the person’s blood stream.12 In other words, because of the
delayed absorption, a person who drinks a significant amount of alcohol immediately
before driving would not register as over the legal limit at the time of driving, had they
been tested then, even though they may have registered over the limit in a chemical test
taken hours after the driving.13
In 2004, the Alaska legislature made two changes to AS 28.35.030 to
eliminate a defendant’s right to bring a delayed-absorption defense.
First, the legislature redefined the blood-alcohol-level theory to eliminate
the requirement that the State must prove that the post-arrest chemical test accurately
reflected the blood alcohol level of the person at the time of driving.14 Under the post-
2004 version of AS 28.35.030(a)(2), a person is guilty of driving under the influence
under the blood-alcohol-level theory if the person operates or drives a motor vehicle
and “if, as determined by a chemical test taken within four hours after the alleged
operating or driving, there is 0.08 percent or more by weight of alcohol in the person’s
blood.”
Second, the legislature added a new provision to the statute,
subsection (s), that eliminated the delayed-absorption defense. However, subsection (s)
also made clear that a person could still defend against a driving under the influence
12 Valentine, 215 P.3d at 323 (“Typically within an hour after a person has stopped
drinking, the person’s body has absorbed much of the alcohol consumed and is eliminating
alcohol from the bloodstream faster than it is absorbing it — that is, the point of ‘peak’
blood alcohol level has passed. But in some people this ‘peak’ point may not be reached
for up to four hours after drinking because the rate at which the body absorbs alcohol
depends on a variety of factors, including consumption of food, having an upset stomach,
and the type of alcohol consumed. Therefore, it is possible that a person’s blood alcohol at
the time of driving was lower than at the time the person took a post-arrest chemical test.”).
13 Id.
14 SLA 2004, ch. 124, § 25.

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charge by asserting that the result of the chemical test was due to drinking that occurred
after driving or operating the motor vehicle.15 Subsection (s) states:
In a prosecution under (a) of this section, a person may
introduce evidence on the amount of alcohol consumed
before or after operating or driving the motor vehicle,
aircraft, or watercraft to rebut or explain the results of a
chemical test, but the consumption of alcohol before
operating or driving may not be used as a defense that the
chemical test did not measure the blood alcohol at the time
of the operating or driving. Consumption of alcohol after
operating or driving the motor vehicle, aircraft, or
watercraft may be used to raise such a defense.[16]
In Valentine v. State, the Alaska Supreme Court held that the legislature’s
elimination of the delayed-absorption defense violated due process when applied to the
under-the-influence theory.17 But the court held that the legislature’s elimination of the
delayed-absorption defense did not violate due process in prosecutions under the blood-
alcohol-level theory because the legislature had statutorily redefined the blood-alcohol-
level theory of driving under the influence to eliminate the requirement that the State
prove that the person’s blood alcohol level was .08 percent or over at the time of
driving.18
15 SLA 2004, ch. 124, § 27.
16 AS 28.35.030(s) (emphasis added).
17 Valentine, 215 P.3d at 326.
18 Id. Thus, a person may still rely on a delayed-absorption defense in a prosecution
for driving under the influence under the under-the-influence theory (AS 28.35.030(a)(1))
because that theory still requires the State to prove that the person was “under the
influence” at the time of driving. Id. at 326-27. Because the jury in Valentine returned a
general verdict without specifying the theory under which they were convicting the
defendant, the supreme court vacated the defendant’s conviction and remanded for a new
trial where the defendant could raise the delayed-absorption defense with regard to the
under-the-influence theory even though the defendant could not raise the delayed-
absorption defense with regard to the blood-alcohol-level theory. Id. at 327.

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Thus, in a DUI prosecution under the blood-alcohol-level theory, provided
that the defense of post-driving drinking is not raised, the State does not need to prove
that the chemical test accurately reflected the defendant’s blood alcohol level at the time
of driving. Instead, as long as the defense of post-driving drinking is not raised, the
State need only prove that a chemical test taken within four hours of the person’s
operating or driving showed that the person’s blood alcohol level was .08 percent or
more. This is essentially what the current pattern jury instruction for the blood-alcohol-
level theory provides.19
But the situation becomes more complicated in cases where there has been
a claim of post-driving drinking. We addressed this potential complication in our
Valentine decision. In that case, we explained that a defendant was guilty under
AS 28.35.030(a)(2) (the blood-alcohol-level theory of driving under the influence) if
the defendant’s blood alcohol level was over the legal limit as measured by a chemical
test taken within four hours of driving and “the test result is attributable to alcohol
ingested before or during the operation of a motor vehicle.”20 As we explained,
Under [AS 28.35.030(a)(2)], it does not matter how
intoxicated the motorist was at the time of driving. What
matters is whether the motorist ingested enough alcohol
before or while driving to have a blood alcohol level at or
above .08 percent at the time of a chemical test administered
within four hours of driving. The defendant may attack the
accuracy of the chemical test, or show that alcohol was
consumed after driving.[21]
We noted that the legislature has “little interest in penalizing motorists for drinking after
driving” and that a defendant could therefore defend against a DUI prosecution under
19 See Alaska Criminal Pattern Jury Instruction 28.35.030(a)(2) (Revised 2011).
20 Valentine v. State, 155 P.3d 331, 339 (Alaska App. 2007) rev’d on other grounds,
215 P.3d 319 (Alaska 2009).
21 Id. at 344 (emphasis added).

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the blood-alcohol-level theory by claiming that “their alcohol-level was above the legal
limit at the time of a chemical test because of alcohol they consumed after driving.”22
In other words, to prove a defendant guilty in a case where the defense of
post-driving drinking is raised, the State must prove beyond a reasonable doubt that the
chemical test taken within four hours of driving would still be .08 percent or higher
even subtracting the effect of any alleged post-driving drinking. The State may show
this by (1) proving that there was no post-driving drinking; (2) proving that any post-
driving drinking was so negligible that it had no effect on the chemical test result; or
(3) proving that the test result would still be .08 percent or greater even accounting for
the effect of the post-driving drinking on the test results.23
Why we conclude that any error in failing to instruct the jury on Lane’s
chosen defense was harmless beyond a reasonable doubt
In the current case, Lane asserted that his chemical test was over .08
percent only because he had consumed alcohol as a passenger in the truck after he had
operated the skiff. As AS 28.35.030(s) makes clear, post-driving drinking is a valid
defense in a prosecution for driving under the influence.
But in order to properly raise this defense, there needs to be “some
evidence” of post-driving drinking.24 “Some evidence” is evidence that “viewed in the
22 Id. at 348 (emphasis added).
23 See Wynacht v. State, 2012 WL 880621, at *2 (Alaska App. Mar. 14, 2012)
(unpublished).
24 See AS 11.81.900(b)(20) (“‘[D]efense,’ other than an affirmative defense, means
that (A) some evidence must be admitted which places in issue the defense; and (B) the
state then has the burden of disproving the existence of the defense beyond a reasonable
doubt.”). We note that an “affirmative defense” also requires “some evidence” but the
burden is ultimately on the defendant to prove an affirmative defense (such as necessity)
by a preponderance of the evidence. See AS 11.81.900(b)(2). Here, the legislature referred
to post-driving drinking as a “defense” rather than an “affirmative defense.” The burden is

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light most favorable to the defendant, would allow a reasonable juror to find in the
defendant’s favor on each element of the defense.”25 The defendant’s burden of
producing “some evidence” is not a heavy one.26 It does not necessarily require the
defendant to testify or even offer direct evidence in their own behalf.27 “Some evidence”
may arise from weaknesses in the prosecution’s evidence or from impeachment of the
prosecution’s witnesses.28 Once the “some evidence” threshold is met, the trial court
must instruct the jury on the proposed defense, and the State must disprove the defense
beyond a reasonable doubt.29
Whether “some evidence” warrants an instruction on a proposed defense
is a question of law that appellate courts resolve de novo based on the entire record.30
Here, the only evidence to support Lane’s post-driving drinking defense
was the fact that there was an eight-minute gap between the harbormaster’s 911 call
and the traffic stop during which time Lane could theoretically have engaged in post-
driving drinking. There was otherwise no evidence of any post-driving drinking. Under
these circumstances, we conclude that any error in failing to instruct the jury on Lane’s
therefore on the State to disprove the post-driving drinking defense beyond a reasonable
doubt provided that there has been “some evidence” to place the defense in issue.
25 Greenwood v. State, 237 P.3d 1018, 1022 (Alaska 2010) (quoting McGee v. State,
162 P.3d 1251, 1261 (Alaska 2007)); State v. Garrison, 171 P.3d 91, 94 (Alaska 2007).
26 Greenwood, 237 P.3d at 1022 (“The ‘some evidence’ burden is not a heavy one —
as long as the defendant produces some evidence to support each element of the defense,
‘any weakness or implausibility in that evidence is irrelevant’ and ‘a matter for the jury,
not for the court.’”) (quoting Garrison, 171 P.3d at 95).
27 Nathaniel v. State, 668 P.2d 851, 855 (Alaska App. 1983).
28 Id.
29 Greenwood, 237 P.3d at 1022; AS 11.81.900(b)(20).
30 Greenwood, 237 P.3d at 1022.

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post-driving drinking defense was harmless beyond a reasonable doubt because he
failed to meet the “some evidence” threshold required for that defense.
That said, we caution trial courts that the “some evidence” test is not
intended to be a heavy burden and it is inherently risky to proceed, as the superior court
did here, with jury instructions that seemingly preclude the defendant’s chosen defense.
As we have previously advised trial courts, “‘a strong argument can be made that a trial
judge should err on the side of giving instructions’ on a proposed defense.”31 Doing so
helps guard against potential future reversal of a conviction if the trial court’s “some
evidence” analysis is flawed. It also ensures that the jury has the benefit of the law that
governs a proposed defense (no matter how weak or incredulous the proposed defense
may appear to the trial court), and it prevents the jury from applying its own, perhaps
misguided, understanding of the proposed defense in the absence of a court instruction
to guide its deliberations.32
Given the arguments of counsel in this case, it would have been less
confusing if the jury had not received a pattern jury instruction that erroneously
suggested that post-driving drinking was not a defense in a prosecution for driving
under the influence. We therefore encourage the Criminal Pattern Jury Instructions
Committee to revisit the current pattern jury instructions for the blood-alcohol-level
theory under AS 28.35.030(a)(2) and to ensure that the tension between the current
pattern jury instruction and AS 28.35.030(s) (recognizing the defense of post-driving
drinking) is addressed and resolved, at least with respect to cases where the defense of
post-driving drinking is properly raised.
31 Id. at 1022-23 (quoting Seibold v. State, 959 P.2d 780, 782 (Alaska App. 1998)).
32 Id.

Conclusion
The judgment of the district court is AFFIRMED.
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