Four years have passed since the night Jennifer Axelberg took refuge in a vehicle to escape her abusive husband after an alcohol-fueled fight at a cabin in rural Mora. He had taken her cellphone, smashed the windshield and was trying to climb in when, despite her own intoxication — a blood alcohol level later determined to be .16 — Axelberg believed that driving to get away was her only recourse.
She found safety less than a mile away, but was arrested on a drunken-driving charge, and later pleaded guilty to careless driving and lost her license for about six months. Axelberg fought the revocation, arguing that she should have avoided punishment under the “necessity defense” — the argument that breaking the law is the only option to avoid danger. Years of court battles culminated in a 2014 Minnesota Supreme Court decision that although the necessity defense applies to criminal cases, it cannot be used in license revocation.
“… We must read this state’s laws as they are, not as some argue they should be,” Chief Justice Lorie Gildea wrote in the majority opinion.
Thanks to Axelberg’s case, the Legislature is now considering amending the law to allow the necessity defense in drunken-driving implied-consent cases. A bill authored by Sen. Bobby Joe Champion, DFL-Minneapolis, was debated in last week’s Senate Judiciary Committee, where lawmakers and witnesses alike hashed out whether the defense could be abused.
Joel Watne, a retired member of the attorney general’s office who was a longtime drunken-driving enforcer and key in lobbying for the state’s drunken-driving laws, warned that the broad language could fall victim to defense attorneys with “exceedingly fertile imaginations.”
“I can assure you that if this language were law, you would be in court tomorrow telling the court, ‘Well, it’s cold at night in Minnesota. The forecast was below zero. My client was kicked out of the bar at closing time and didn’t have money for a cab. He had to sit in his car. And because it’s cold he had to start it up. Therefore he should not be charged with [DWI], it’s a necessity.’ ”
Ryan Pacyga, a Twin Cities criminal defense attorney who represented Axelberg for no charge throughout her yearslong battle, told the committee that the necessity defense as it exists in criminal defense has a high and narrow threshold. If attorneys argue for the necessity defense, it’s a judge’s job to determine whether it holds water.
“We’ve got to give the judge a chance,” he said. “We’ve got to give these victims a chance for a judge to weigh the gravity of their situation versus the peril to public safety if that is truly their only option.”
The bill also found an ally in the Minnesota Coalition for Battered Women. The group’s executive director, Liz Richards, told the committee that situations like Axelberg’s are generally limited to isolated, rural areas where people have no other way to seek safety.
The measure, which will likely be rolled into an omnibus bill containing other drunken-driving legislation, remains under consideration.