A very interesting case just finished running its way through the Minnesota Court system and is now being deliberated by the Minnesota Supreme Court. It is a case, Axelberg vs, Minnesota, that begs the question: “Does the necessity defense supersede DUI?”

Today we're going to look at the case of Axelberg vs. Minnesota. Let's begin.

It all started May 30, 2011. Jennifer Axelberg, 39, and her husband were on their way to a cabin in Kanabec County. The couple arrived and later that afternoon they headed to the Fish Lake Resort, located slightly less than a mile from the cabin.

The couple consumed alcohol while at the resort and an argument broke out between them. They left the resort and returned to the cabin around 1:30 a.m. Once there, the argument began again. Both parties were intoxicated at this time.

The argument turned physical and Axelberg was assaulted by her husband who took her cell phone, pushed her in the chest and struck her in the head twice.

Without her phone and fearing for her safety, Axelberg fled outside and entered her vehicle. She later told authorities she had no interest in starting the vehicle but was forced to do so after her husband began to hit the windshield with his fist, causing it to crack. Axelberg feared her husband would eventually break into the vehicle so she started the car and drove away with her husband chasing behind her.

Upon leaving her home, Axelberg returned to the Fish Lake Resort. Her husband arrived shortly thereafter and the argument continued. A bystander called police and the arriving officer arrested Axelberg's husband for domestic assault and disorderly conduct. He later pleaded guilty to both counts.

Axelberg herself was also arrested for suspicion of DWI and her driver's license was revoked by the commissioner of public safety pursuant to the implied-consent statute.

Axelberg pleaded guilty to a lesser charge of careless driving and her license was revoked, August 4, 2011, for six months. Her license has since been reinstated.

Axelberg appealed the case because she felt domestic violence victims shouldn't be punished for fleeing the situation, according to her attorney. In court, Axelberg's attorney sought a judicial review of the license revocation, arguing affirmative defense of necessity. The necessity defense is a common-law defense that has been proven applicable in criminal cases and is applied “only in emergency situations where the peril is instant, overwhelming and leaves no alternative but the conduct in question.”

The district court ruled “the necessity defense is not a recognized defense in an implied-consent proceeding” and sustained the revocation. The Minnesota Court of Appeals affirmed that decision.

The case reached the Minnesota Supreme Court where Axelberg's attorney argued Axelberg had a duty to retreat under Minnesota law when she came under attack from her husband. He argued that the necessity defense was appropriate in this case.

The District Court and the Court of Appeals had previously ruled that the necessity defense is criminal-based and is unavailable in a civil license revocation hearing. Even in criminal cases the defense has only been successfully applied to cases where the danger is instant and leaves no alternative.

Attorneys for the Commissioner of Public Safety argued the defense is never valid in an implied-consent case. They further question the necessity argument by stating that Axelberg “did not appear to be in imminent danger. [Axelberg] displayed no observable injuries,” according the documents they filed.

To date the Minnesota Supreme Court has not reached a verdict on this case. Check back to this blog for updates.

If you have questions regarding the necessity defense in Minnesota, you need experienced legal counsel. Contact Attorney Eric J. Olson for vigorous defense and unrivaled results.