(dissenting, with whom Marshall, C.J., and Cordy, J., join). I believe that the evidence, viewed in the light most favorable to the defendant, entitled him to a jury instruction on the defense of necessity, and that the court, in affirming the denial of the defendant’s request for an instruction, has construed our law on the availability of the necessity defense in an unduly restrictive manner.
The necessity defense recognizes that circumstances may force individuals to choose between competing evils. In partí-*17cular, it may be reasonable at times for an individual to engage in the “lesser evil” of committing a crime in order to avoid greater harms; when this occurs, the individual should not be punished by the law for his actions. Commonwealth v. Iglesia, 403 Mass. 132, 134 (1988), quoting Commonwealth v. Brug-mann, 13 Mass. App. Ct. 373, 377 (1982) (“At [the] root [of the necessity defense] is an appreciation that there may be circumstances where the value protected by the law is, as a matter of public policy, eclipsed by a superseding value which makes it inappropriate and unjust to apply the usual criminal rule”).
As the court states, our common law requires a defendant to present some evidence on each of the four elements of the necessity defense before a judge is required to instruct the jury on such defense. See ante at 14. Once a judge determines that the evidence, viewed in the light most favorable to the defendant, permits a finding that the defendant reasonably acted out of necessity, the judge must instruct on the defense. See Commonwealth v. Pike, 428 Mass. 393, 400 (1998). The jury then decide what the facts are and resolve the ultimate question whether the defendant’s actions were justified by necessity.
The court determined that the defendant failed to present sufficient evidence on the third element, namely, that there were no legal alternatives that would be effective in abating the danger posed to Heather Maloney from her serious head wound, to entitle the defendant to an instruction on necessity. Ante at 15. The court concluded that “[t]his is not a case where, because of location or circumstances, there were no legal alternatives for abating the medical danger to Maloney.” Id. “Moreover, there has been no showing by the defendant that available alternatives would have been ineffective, leaving him with no option but to drive while intoxicated.” Id. The court stated that the record did not indicate that the defendant made any effort to pursue legal alternatives prior to making the decision to drive. “The defendant did not try to contact a nearby neighbor to place a 911 emergency telephone call or, alternatively, to drive Maloney to the hospital. There is also no evidence that the defendant attempted to secure help from the fire station or Chinese restaurant, both in relatively close proximity to the defendant’s trailer.” Id.
*18The problem with the court’s decision is that it puts unreasonable demands on the defendant to show in every instance that he has tested the legal alternatives. In this case, the court apparently requires the defendant to have knocked on a neighbor’s door or walked to the fire station or Chinese restaurant. This is too burdensome a threshold. To get to the jury, the defendant need only present evidence that he did not explore the legal alternatives because he reasonably deemed them to have been too high a risk, and he was, applying an objective standard, entitled not to have pursued them. Cf. Commonwealth v. McCambridge, 44 Mass. App. Ct. 285, 291 (1998) (Commonwealth’s argument that defendant had legal alternative and thus was not entitled to instruction on necessity defense improperly “ignore[d] the fact that the legal alternative must be effective”). If it was unreasonable to forgo the lawful alternatives, then the defendant has not made out a case that should go to the jury.
The legal alternatives available to the defendant here carried considerable risk of failure. The defendant had already spent valuable time attempting to stop Maloney’s bleeding using towels, but was unable to do so. The first neighbor from whom the defendant might have sought help might not have owned a car, or might have been unable or unwilling to drive Maloney to a hospital; the defendant would then have had to proceed to other neighbors, or to the fire station, where there might not have been anyone available to help; even had there been, it could have meant unacceptable delay in getting a badly injured person to the hospital. In short, any of the alternatives proposed today by the court would have consumed valuable time to no purpose; their exploration raised the real possibility of a chain of events that could have resulted in Maloney’s serious injury or death. Given the element of risk associated with the situation and the uncertain likelihood of success with respect to the legal alternatives, a jury could find that it was reasonable for the defendant to reject those alternatives and to select the unlawful solution because of the greater likelihood that it would work. The court’s decision, however, punishes a reasonable person for taking the “lesser evil” of the unlawful but more effective alternative.
The court’s conclusion is not supported by our case law. In Commonwealth v. Iglesia, 403 Mass. 132, 135 (1988), for *19instance, we held that an instruction regarding the necessity defense was proper where the defendant, charged with illegal possession of a firearm, presented evidence that he obtained the firearm when, during an attack, he wrestled the gun from his attacker and brought it immediately to a police station. We did not insist that availability of other alternatives, e.g., dropping the weapon and leaving, or waiting for the police, precluded assertion of a necessity defense, nor did we require that the defendant test these alternatives. Id. at 134. See Commonwealth v. McCambridge, supra at 291-292 (defendant, who grabbed gun to defend himself against attacker who was pointing gun at him, was entitled to instruction on necessity defense despite not taking legal alternative of attempting to disarm his assailant).
Of course, a defendant would not be entitled to an instruction on necessity if a reasonable person in his position would have found the legal alternatives to be viable. It would have been proper, for instance, for the judge to deny the defendant’s request for an instruction on necessity had there been a hospital within walking distance or a neighbor who offered to drive Maloney to the hospital immediately. In most instances, the unlawful path will not be deemed to be reasonable. On this record, however, the defendant was entitled to make a case to the jury that it was reasonable for him to drive his heavily bleeding girl friend to the hospital to receive treatment without first exploring potentially ineffective alternatives. Although the jury might ultimately reject the defendant’s argument, it was for them to decide whether he chose the lesser of two evils. I respectfully dissent.