The Minnesota Supreme Court will hear the case of a Monticello woman whose driver's license was revoked after she drove drunk to escape an abusive husband, pitting the public concern about domestic abuse against drunken driving.

Jennifer Axelberg, 39, is challenging the revocation from a spring 2011 incident near Mora, which Axelberg's attorney, Ryan Pacyga, argued fell under the state's "necessity defense." The necessity defense in criminal cases is used in emergencies where the damage that could result from obeying the law outweighs the harm caused by breaking it. Pacyga argues that same principle should be applied to the civil matter regarding the state's implied consent law.

Her attorney as well as advocates working against domestic abuse and drunken driving agree that Axelberg likely had no other option but to flee the secluded area in her car. But they part ways on whether her license should have been revoked.

"This is a tough one," said Carol Arthur, executive director of the Domestic Abuse Project, noting that she has limited information about this case.

"This woman was in fear for her life," Arthur said. "I'm not saying she should get on the road and drive for miles and miles, but to drive far enough away from him so he's not going to run and catch her. I don't know how impaired she was or her history, but what I do know, if he's breaking out the windshield, he gets to her, then she's next. He's so angry, he's going to pound her to a pulp. As an advocate of domestic violence, I would have to say, 'Yes, drive away from there if you can to get away from him.' "

Jon Cummings, founder of Minnesotans for Safe Driving also agreed that Axelberg had few choices. "She drove to get away from being abused and she's alive," she said "But she was still drunk. … She lost her license for a while — tough bounce. Those are the rules. If they start making exceptions for everybody, then there's going to be chaos."

Not true, said Pacyga, who argues that there's no harder defense to prove than the necessity defense. "It's so rare and you have such a high bar to reach that it's not going to open the flood gates to more of these cases and people getting out of DWIs. It's just not going to happen."

On the night Axelberg sought refuge from a violent husband, she had one option, Pacyga said.

She and her husband had walked to their remote Kanabec County family cabin from a nearby resort, where they had been drinking. They got into a fight and "he shoved her a couple of times and hit her twice in the head," Pacyga said. She couldn't get into the cabin and she couldn't outrun her husband, who's "bigger, faster and stronger," Pacyga said.

So she jumped into her car in search of safety. Her husband jumped on the hood and pounded the windshield so hard it began to shatter. It was then that she put the key in the ignition. When she backed the car up, he stayed on the hood. When she pulled forward, he chased the car. Pacyga said Axelberg did the only thing she could do: She drove back to the resort less than a mile away to get help, Pacyga said.

Her husband was arrested for domestic assault and disorderly conduct; she was arrested for drunken driving.

Axelberg, whose blood-alcohol level registered 0.18 percent, pleaded guilty to careless driving, a lesser charge because of the extenuating circumstances, Pacyga said. But her license was revoked under Minnesota's implied-consent law.

Although her yearlong revocation is up, Pacyga and his client are appealing the case on principle.

A district judge and the Minnesota Court of Appeals both sided against Axelberg. District Judge Stoney Hiljus reasoned that the criminal-based necessity defense can't be used in a civil action, and that "the episode of domestic violence here is outweighed by the potential hazards [Axelberg] created for the public when she drove her vehicle while intoxicated."

The Appeals Court said in June that if the necessity defense is applicable, it is up to the Legislature to modify the statute to say so.

But Pacyga would like the Minnesota Supreme Court, which likely will hear oral arguments in a few months, to recognize the necessity defense in such cases.

"It's kind of weird if you think about it. It's a defense in a criminal case, but you get a DWI in the exact same case with the same set of facts and the same person on the civil side. It doesn't make any sense," he said. "You should be able to raise it as a defense in both and have a judge consider it. The judge and the courts are the ultimate gatekeepers on this."

"We've come so far in domestic assault cases over the years," Pacyga said. "I felt like we took a step backward in this case." 612-673-4788 612-673-4921