Kanabec County District Court File No. 33-CV-11-292 Ryan Michael Pacyga, Minneapolis, Minnesota (for appellant)
Lori Swanson, Attorney General, Jeffrey S. Bilcik, Assistant Attorney General, St. Paul, Minnesota (for respondent)
Considered and decided by Chutich, Presiding Judge; Peterson, Judge; and Ross, Judge.
A voluntarily intoxicated driver may not assert the affirmative defense of necessity in an implied-consent judicial review hearing under Minn. Stat. § 169A.53, subd. 3(b) (2010).
In this appeal from an order sustaining the revocation of her driver's license pursuant to the implied-consent statute, appellant argues that the district court erred by refusing to permit her to raise the affirmative defense of necessity during the judicial review hearing. We affirm.
Appellant Jennifer Marie Axelberg and her husband, Jason Axelberg (Axelberg), drove to a family cabin in Kanabec County. Later that day, the Axelbergs went to Fish Lake Resort, approximately nine-tenths of a mile from their cabin, where they consumed alcohol. Appellant and Axelberg argued while at the resort. Upon returning to their cabin at about 1:30 a.m., the couple, now intoxicated, began to argue again.
The argument quickly escalated, and Axelberg physically assaulted appellant, pushing her in the chest and hitting her twice on the head. Because Axelberg had taken appellant's cell phone and appellant feared that he would cause her further physical harm, appellant got into their car and locked the doors. Axelberg climbed up on the car and hit the windshield with his fist, causing the windshield to crack in a spider pattern. Appellant believed that Axelberg would soon gain access to the car and continue the assault, so she started the car and drove away as Axelberg shouted and ran after the car.
Appellant drove to Fish Lake Resort. Soon after, Axelberg arrived at the resort, and a bystander called police and intervened to stop Axelberg from acting aggressively toward appellant. The responding deputy noticed that appellant had no physical injuries and appeared calm. The deputy arrested Axelberg for domestic assault and disorderly conduct, and Axelberg later pleaded guilty to both offenses.
Appellant was also arrested on suspicion of driving while impaired, and the commissioner of public safety revoked her driver's license pursuant to the implied-consent statute. Appellant sought judicial review of the license revocation and attempted to assert the affirmative defense of necessity. The district court concluded that the necessity defense is not a recognized defense in an implied-consent proceeding and sustained the revocation of appellant's driver's license.
Is the necessity defense available to a voluntarily intoxicated driver who violates the implied-consent statute?
In a judicial review hearing for a driver's license revocation under the implied-consent statute, the commissioner must demonstrate by a preponderance of the evidence that license revocation is appropriate. Ellingson v. Comm'r of Pub. Safety, 800 N.W.2d 805, 806 (Minn.App. 2011), review denied (Minn. Aug. 24, 2011). This court reviews the district court's findings supporting an order sustaining a license revocation for clear error. Jasper v. Comm'r of Pub. Safety, 642 N.W.2d 435, 440 (Minn. 2002). We give de novo review to questions of law in implied-consent proceedings. Harrison v. Comm'r of Pub. Safety, 781 N.W.2d 918, 920 (Minn.App. 2010); see Ellingson, 800 N.W.2d at 806 (stating that appellate court will "overturn conclusions of law only if the district court erroneously ...