Driving while drunk is wrong. I’m not going to dispute that. In fact, that’s why I live in New York, where my drinking habit hobby can never put anyone at risk. Except me, I suppose.

And the drive to drive drunk-driving incidents down further is in full swing, with the National Transportation Safety Board suggesting that states reduce the legal limit for driving to .05% — the level of intoxication achieved by inhaling while walking past a bar.

That said, are there ever any exceptions to the ironclad rule? And might one of those be fleeing an attacker?

In a word, no. At least that’s the conclusion of the Minnesota Court of Appeals.

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.

Google Maps suggests that Kanabec County is, while not desolate, pretty sparse and wildernessy. And when I hear about physical altercations and cabins, I presume the scene is a step away from turning into a slasher film because of the whole “no one can hear you scream,” “ancient Indian burial ground,” “resting place of the Necronomicon” thing. There’s even a movie called The Cabin in the Woods because the concept is implicitly scary.

Seriously though, where is a drunk domestic abuse victim supposed to go if they are attacked in a literal cabin in the woods? Running into the forest is a bad idea because… bears. Actually, I don’t know whether there are bears in Kanabec County, but running into a forest drunk must be fraught with other dangers. Normally, one could rely on calling the authorities, but in more rural areas, there’s no guarantee that a victim will receive a quick response.

So at some point, a victim will have to take to her car. Let’s compare Axelberg’s case to the scenario I’ve outlined:

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,” [the dissent] 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.”

OK, that definitely sounds like the time to start the car and drive away to me. I’m not advocating that she drive all the way back to civilization, but it seems to me there has to be some allowance for using a vehicle to put reasonable distance between a victim and an attacker or to get to a police station, or the nearest neighbor, to take refuge.

That’s what Jennifer Axelberg thought, too. The necessity defense she sought to employ at her trial would not be a “get out of jail free card” for drunk assault victims. It would consider the necessity of Axelberg’s illegal response, in this case, driving drunk.

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.

The court rejected Axelberg’s request, citing her “negligence and recklessness” in burning dinner. No, that’s not true, but the actual reason the court gave was just as insulting:

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.

Apparently the Minnesota Court of Appeals does not take kindly to novel questions of law. Certainly the court is right that laws against drunk driving should focus on the public interest, but this was just a request to evaluate the necessity of Axelberg’s decision to drive. This cannot be stressed enough: she could still be convicted, but the courts should at least let her air the defense.

On the other hand, Judge Margaret H. Chutich took this view:

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 “foreclose its availability.”

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

Hold the phone! Courts make decisions in the absence of published opinions?

Chutich also noted that the necessity defense is recognized for more serious crimes. That sets up a strange set of incentives, giving Axelberg better options for her defense if she stabbed her husband to death with her heels than if she drove to a safe location.

Minn. Court of Appeals upholds DWI of woman fleeing domestic violence [KMSP]

Earlier: Murder In High-Heels Provides Hooker Shooting Counterpoint


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