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

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?"

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.

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.

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.

"Why is the commissioner using scarce resources to go after this woman?" Anderson asked.

Galus said that he didn't have an answer, but he argued that the decision to revoke a license can't be overturned.

Pacyga countered that the justices had all the information they needed and that "Mrs. Axelberg has suffered through this long enough."

Pacyga became emotional as he presented his closing argument, saying that there have been several recent high-profile domestic violence cases in Minnesota and that "the commissioner can't turn a back on these victims."

As far as the justices' concern that overturning Axelberg's case would result in more drunken drivers on the road, Pacyga countered that her case is unique and that applying the necessity defense to implied-consent proceedings would rarely prevail.

"So many things are being done to protect victims of abuse," he said. "What happened to Jennifer has taken these things a few steps back. She was penalized for saving her own life."