She had driven drunk to a tavern to flee abusive husband.
Jennifer Axelberg, 38, pleaded guilty to careless driving in connection with the incident in the spring of 2011 near Mora, Minn., and in a separate action, her license was revoked for a year. Although the driving offense is considered a criminal matter, the license revocation is considered a civil matter under Minnesota’s implied consent law.
Axelberg and her attorney, Ryan Pacyga, argued — both at the district court and appellate court — that the state’s “necessity defense” for criminal cases also should apply to the implied consent law. The necessity defense is used in emergencies where the damage that could result from obeying the law outweighs the harm caused by breaking the law.
Jennifer Axelberg had sought shelter in her car, parked outside a family cabin in Kanabec County after her husband assaulted her in the early hours of May 30, 2011. Both had been drinking. When her husband jumped on the car and pounded on the windshield so hard that it cracked, Axelberg drove nine-tenths of a mile to a tavern to get help. There, she was arrested on suspicion of drunken driving.
When Axelberg challenged her license revocation, District Judge Stoney Hiljus ruled that the criminal-based necessity defense can’t be used in a civil matter and said “the episode of domestic violence here is outweighed by the potential hazards [Axelberg] created for the public when she drove her vehicle while intoxicated.”
Although Axelberg’s yearlong revocation period was up by the time the lower court ruling was handed down, her attorney, Ryan Pacyga, said they appealed on principle.
“It’s time the law catches up with society,” Pacyga said then. “In cases where you really do have nowhere else to go and getting in the car isn’t a safe enough barrier, don’t tell me you can’t drive to the safest location to get help.”
The Appeals Court said that no appellate court in the state has applied the necessity defense to an implied-consent case and it has not been determined whether it is available in such cases.
If the necessity defense is applicable, the court said, it is up to the Legislature to modify the statute to say so. As it stands, the court said, the implied consent law “expressly limits the issues that may be addressed” in a review hearing.
Pacyga said he plans to appeal the ruling to the state Supreme Court.
Pat Pheifer • 952-746-3284