Tricky case before Minnesota top court: Drunken driver who fled abuser

  • Article by: DAVID CHANEN , Star Tribune
  • Updated: December 13, 2013 - 6:07 AM

Woman who drove drunk to flee abuser argues that her license shouldn’t have been revoked.

Minnesota Supreme Court justices had lobbed question after question about the intricate legal merits of an unusual drunken-driving case at the attorney standing before them Thursday when suddenly the discussion turned to the human element.

What if, Justice David Lillehaug asked the lawyer representing the state Department of Public Safety, somebody put a gun to an intoxicated person’s head and told him to drive, resulting in revocation of the driver’s license?

With little hesitation, attorney John Galus said he would instruct his grandmother, wife or daughter to violate the law in such a case. But minutes later, he was arguing the opposite in the drunken-driving and domestic-abuse case of Jennifer Axelberg, who sat quietly in the back of the courtroom.

Two years ago, Axelberg was intoxicated when she drove less than a mile in rural Mora, Minn., to escape her drunk and abusive husband. She was arrested on a drunken-driving charge, but later pleaded guilty to careless driving and lost her license for about six months.

The state Supreme Court hearing was her third shot at challenging the revocation, claiming that the damage that could have resulted from obeying the law outweighed the harm caused by breaking it — the so-called necessity defense.

The case has put those fighting drunken driving and domestic abuse on opposite ends of the debate.

“I’m fighting for others who might get into this situation,” Axelberg, 39, said after Thursday’s hearing. “Getting behind the wheel was a bad choice. When you have no other choice, what are you left with?”

Her husband pleaded guilty to domestic abuse and attended counseling. The couple are sober now and have patched up their relationship. But even with her personal life more stable, Axelberg refused on principle to drop her case.

Attorney Ryan Pacyga, who has represented her pro bono throughout the appeals process, said pursuing the case was the right thing to do. He choked up with emotion as he finished his arguments to the seven justices, saying it was his duty to raise issues to the court if a law appears unjust.

“Reversing the lower court’s decisions won’t increase drunken drivers,” he said. “You have the power to change this.”

So to yet another court, he retold Axelberg’s story. How she feared for her safety on that spring day in 2011 outside the Kanabec County cabin where she and her husband had been staying when an altercation turned physical. How she ran to her car for protection from her husband, who was chasing her, initially not putting her keys in the ignition.

Then her husband pounded on the windshield so hard it began to shatter, Pacyga said. She had no cellphone, so she drove off to the first safe place she could find.

Focus on necessity defense

Pacyga’s key argument, rejected by the district court and the Court of Appeals, was that necessity should be an affirmative defense to the implied-consent proceeding.

But so far, the courts have ruled that defense is criminal-based and unavailable in a civil license-revocation hearing. Even in criminal cases, the defense is applied only in emergency situations where the peril is instant, overwhelming and leaves no alternative but the conduct in question, they’ve said. And Galus argued Thursday that the necessity defense is never available in implied-consent proceedings.

Justice Christopher Dietzen questioned whether the Legislature would have the power to make policy decisions that give drunken driving higher priority than domestic abuse in this type of situation.

In trying to find other future scenarios in which the necessity defense might apply if Pacyga’s reasoning were to prevail, Justice David Stras asked if a person in a situation similar to Axelberg’s could have done the same thing in downtown Minneapolis. Pacyga responded that there, a person would have many more ways to quickly get help that Axelberg didn’t have in a rural area.

Soon after Galus started to present his case, Justice G. Barry Anderson asked if the state’s commissioner of public safety has any leeway to not revoke somebody’s license.

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