dissenting.
Alaska Statute 11.81.320(a) codifies the necessity defense in the criminal code “to the extent permitted by common law.” In Cleveland v. Anchorage,5 the Alaska Supreme Court described the necessity defense as having three elements: (1) the defendant’s violation of the law must have been done to prevent a significant evil, (2) there must have been no adequate alternative method to prevent this evil, and (3) the harm caused by the defendant’s violation of the law must not have been disproportionate to the foreseeable harm that the defendant was trying to avoid.6 The court explained that the defense is available:
if the accused reasonably believed at the time of acting that the first and second elements were present, even if that belief was mistaken; but the accused’s belief will not suffice for the third element. An objective determination must be made as to whether the defendant’s value judgment was correct, given the facts as he reasonably perceived them.[7]
The necessity defense is an affirmative defense; a defendant must present some evidence of that defense before the defendant is entitled to a jury instruction on the necessity defense.8 “Some evidence” is evidence which, viewed in the light most favorable to the defendant, is sufficient to allow a reasonable juror to find in the defendant’s favor on each element of the defense.9
I conclude that the record did not support Allen’s request for a necessity instruction. Allen was required to present some evidence that he reasonably believed that he had no adequate alternative to driving with his suspended license. In my view, the trial court’s obligation does not end with confirming whether a defendant testified that he or she believed there was no adequate alternative. The trial court must decide whether, in context, a reasonable juror might conclude that the defendant’s belief was reasonable. This requires the court to address a question of law; the adequacy of the alternatives available to the defendant.
In Nelson v. State,10 the Alaska Supreme Court ruled, as a matter of law, that Nelson was not entitled to a necessity defense where the record showed that he had adequate alternatives available to breaking the law.11 Nelson drove his vehicle off the road and got it stuck. He then took heavy equipment from a nearby state highway facility to retrieve his vehicle. The court said that, according to the record, there were several alternatives available to Nelson that did not involve breaking the law. In Schnabel v. State,12 this court ruled that Schnabel was not entitled to instructions on a necessity defense because Alaska law provided Schnabel with an adequate alternative to illegally crossing a salmon stream with heavy equipment. Schnabel was entitled to seek an administrative waiver to allow him to ford the stream with his vehicles, with administrative *1110and judicial review available if his waiver application was denied.13
Thus, a court faced with a request for a jury instruction on a necessity defense should consider whether there was an “adequate” legal alternative available to the defendant. In other words, does the law allow a person in the defendant’s position to break the law rather than pursuing the alternative?
As the majority describes, Allen was less than half a mile from Big John’s Liquors when he started breaking the law by driving. I see nothing in the record that shows that Allen was at risk because of the weather or that Allen was disabled. I conclude that the record shows Allen had an adequate alternative; he could have walked less than one-half of a mile for his phone call.
. 631 P.2d 1073 (Alaska 1981).
. Id. at 1078.
. Id.
. AS 11.81.320(b); AS 11.81.900(b)(2)(A).
. Lacey v. State, 54 P.3d 304, 308 (Alaska App.2002).
. 597 P.2d 977 (Alaska 1979).
. Id. at 980.
. 663 P.2d 960 (Alaska App.1983).
. Id. at 966.