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# MINNESOTA SUPREME COURT REJECTS DWI IMPLIED CONSENT DEFENSE OF NECESSITY IN DOMESTIC VIOLENCE CASE

May 29, 2014

## Minnesota Supreme Court rejects DWI defense of Necessity for Implied Consent Cases

On May 21, 2014, in a 4-3 decision, the Minnesota Supreme Court rejected a woman’s argument that she should not have lost her driver’s license after driving while drunk to flee her abusive husband.

In a 4-3 decision accompanied by strongly worded dissents, the court ruled against Jennifer Axelberg in a case that pitted the threat to public safety posed by a drunken driver against the danger faced by a domestic violence victim. The majority rejected Axelberg’s use of the so-called necessity defense to fight the revocation of her driver’s license after she was arrested on a drunken-driving charge in 2011.

The justices in the majority argued that strictly construed, Minnesota’s implied-consent statute doesn’t allow a driver to raise such a defense to challenge a license revocation. The letter of such a law should not be disregarded under the pretext of pursuing the “spirit” of the law, Chief Justice Lorie Skjerven Gildea wrote in her 14-page opinion.

Among the dissenters was Justice Alan Page, who wrote that the court had in essence concluded that losing the privilege to drive is a small price to pay for saving one’s life. In doing so, it failed to adhere to case law and “the constitutional mandate to do justice,” he wrote.

The court’s decision implies “that the necessity defense is unavailable not only in cases of domestic abuse, but also in cases in which a victim’s seeking refuge from a violent physical or sexual assault or kidnapping, and the court’s decision thus discourages those individuals from seeking shelter in a motor vehicle as well,” Page wrote.

Justices David Lillehaug and Wilhelmina Wright also wrote dissents.

Axelberg, 39, of Monticello, Minn., had a blood alcohol concentration of 0.16 percent when she drove less than a mile from a lake cabin in rural Mora to escape her drunk and abusive husband. He had her cellphone, and she has said she didn’t think she could outrun him. She drove off only after he smashed the car’s windshield and climbed onto the vehicle.

She was arrested on a drunken-driving charge, and later pleaded guilty to careless driving and lost her license for about six months. Her husband pleaded guilty to domestic abuse and attended counseling.

The ruling does not limit the necessity defense in a criminal case.

Kassius O. Benson Senior Counsel at Kassius Benson Law, P.A.

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