Minn. Court of Appeals upholds DWI of woman fleeing abuse - KMSP-TV

Minn. Court of Appeals upholds DWI of woman fleeing domestic violence

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On Monday, an appellate court upheld the DWI conviction of a Minnesota woman who was charged after she fled domestic violence while intoxicated and had her driver's license revoked.

Jennifer Marie Axelberg appealed on the grounds that she needed to flee for her safety after an argument with her husband turned physical at a family cabin in Kanabec County. She asked the district court to permit her to use the affirmative defense of necessity, but they refused. The case then went before the Minnesota Court of Appeals, which affirmed the lower court's decision.


On May 30, 2011, Axelberg and her husband had driven to the family cabin near Mora, Minn., and later went to the Fish Lake Resort, which was just under a mile away. While there, the Axelbergs drank alcohol and began to argue.

Axelberg and her husband, Jason, returned to their cabin at about 1:30 a.m. and both were intoxicated when they began to argue again. This time, the argument quickly escalated to physical violence, with Jason Axelberg pushing his wife in the chest and hitting her on the head twice.

Since he had also taken her cell phone and she feared he would continue to assault her, Jennifer Axelberg got into the couple's car and locked the doors. At that point, Jason Axelberg climbed onto the vehicle and hit the windshield with his fist, cracking the glass in "a spider pattern," according to court documents.

Jennifer Axelberg said she feared her husband would get inside and continue the assault, so she started the car and drove away as he shouted and ran after the car. She drove back to Fish Lake Resort, and Jason Axelberg arrived soon after. A bystander called police and intervened to stop him from continuing to act aggressively toward his wife.

A responding deputy reported that Jennifer Axelberg did not have physical injuries and appeared calm when he arrested Jason Axelberg on domestic assault and disorderly conduct charges. Jason Axelberg later pleaded guilty to both offenses.

Jennifer Axelberg was also arrested on suspicion of driving while impaired, and the commissioner of public safety revoked her driver's license under the implied-consent statute.


The necessity defense is a common-law, affirmative defense that has previously been applied 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."

To successfully assert the defense, a defendant must show that they had no other option but to violate existing law by demonstrating that the harm resulting from obeying the law would significantly exceed the harm caused by breaking it.

The opinion of the court explains that any defendant must show that there was no legal alternative, that he or she was in danger of imminent physical harm and that there was a direct connection between breaking the law and preventing the harm in order for the necessity defense to apply; however, it is not applicable when the reason for claiming the defense arose from the defendant's own negligence or recklessness.


No appellate court in the state has ever applied the necessity defense in civil, implied-consent license revocation case, so there is no precedent for it to be applied.

Furthermore, the ruling found that even if the court determined that the necessity defense did apply in this instance, it is "the province of the legislature to modify the common law" because the existing statute limits the issues which can be addressed in such hearings -- and the necessity defense does not currently fall within that scope.

The majority opinion of the court, penned by Judge Randolph W. Peterson, certainly stopped short of recommending a change to existing law, however, describing the necessity defense's exclusion from the statute as consistent with the requirement of liberally interpreting the statute "in favor of the public interest and against the private interest of the drivers involved."

Although the court acknowledged Axelberg was threatened with physical injury, the ruling also states that she created an additional risk of physical injury to herself and other motorists by driving while impaired.


Judge Margaret H. Chutich wrote she respectfully dissents from the majority opinion because although there is no precedent for recognizing a necessity defense in such cases, she does not believe the lack of a published opinion should "foreclosed its availability."

"I believe that the defense is available in cases where extraordinary circumstances exist," she wrote.

Chutich described the decision before Jennifer Axelberg as an "agonizing choice" of remaining trapped while her violent husband continued to try to beat her or drive a short distance to what she hoped would be a safe location.

Jennifer Axelberg testified that she only entered the car because she had no other options. Her husband was blocking the door to the cabin, had taken her cell phone and could outrun her in an area that was unlit and unfamiliar to her.

"Axelberg reasonably feared for her safety and testified that she did not intend to drive the car anywhere," Chutich wrote. "After Axelberg locked herself in the car, her husband jumped onto the hood of the car, screamed at her, and punched the windshield hard enough to spider the glass. Axelberg testified that when her husband pounded on the window, she was 'really, really scared.' Only then did she start the car and back out of the driveway with her husband still on the hood, pounding on the windshield."

Chutich argued that the district court declined to analyze the unique circumstances of the case and pointed out that the state widely recognizes necessity as a defense in criminal cases, exempting acts done from compulsion or necessity. Furthermore, the Minnesota Supreme Court has previously considered the necessity defense in instances when a statue did not specifically provide for its application.

Chutich contends that it is still an open question whether the necessity defense can be raised in civil, implied-consent cases. She would have reversed the lower court's decision and remanded additional findings to see whether the facts of the Axelberg case meet the requirements of the necessity defense.

  • In your opinion, would it be reasonable to apply the necessity defense in the Axelberg case?

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