Axelberg v. Comm'r of Public Safety, A12–1341.

• Decision Date: 20 August 2013
• Docket Number: No. A12–1341.,A12–1341.
• Citation: 831 N.W.2d 682
• Parties: Jennifer Marie AXELBERG, petitioner, Appellant, v. COMMISSIONER OF PUBLIC SAFETY, Respondent.
• Court: Minnesota Court of Appeals

831 N.W.2d 682

Jennifer Marie AXELBERG, petitioner, Appellant,

v.COMMISSIONER OF PUBLIC SAFETY, Respondent.

No. A12–1341.

Court of Appeals of Minnesota.

June 10, 2013.

Review Granted Aug. 20, 2013.

Syllabus by the Court

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).

Ryan Michael Pacyga, Minneapolis, MN, for appellant.

Lori Swanson, Attorney General, Jeffrey S. Bilcik, Assistant Attorney General, St. Paul, MN, for respondent.

Considered and decided by CHUTICH, Presiding Judge; PETERSON, Judge; and ROSS, Judge.

OPINION

PETERSON, Judge.

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.

FACTS

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.

ISSUE

Is the necessity defense available to a voluntarily intoxicated driver who violates the implied-consent statute?

ANALYSIS

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 construed and applied the law to the facts of the case”). The availability of an affirmative defense is a question of law. See Boland v. Comm'r of Pub. Safety, 520 N.W.2d 487, 488 (Minn.App.1994).

The necessity defense is a common-law affirmative defense that has been applied in criminal cases.¹State v. Hanson, 468 N.W.2d 77, 78 (Minn.App.1991), review denied (Minn. June 3, 1991). It “applies only in emergency situations where the peril is instant, overwhelming, and leaves no alternative but the conduct in question.” State v. Johnson, 289 Minn. 196, 199, 183 N.W.2d 541, 543 (1971); see Weierke v. Comm'r of Pub. Safety, 578 N.W.2d 815, 816 (Minn.App.1998) (“The necessity defense applies in emergency situations w[h]ere peril is imminent and the defendant has no other option but to violate the law.”). To successfully assert the defense, a criminal defendant must show that the harm that would have resulted from obeying the law would have significantly exceeded the harm actually caused by breaking the law, there was no legal alternative to breaking the law, the defendant was in danger of imminent physical harm, and there was a direct causal connection between breaking the law and preventing the harm. State v. Rein, 477 N.W.2d 716, 717 (Minn.App.1991), review denied (Minn. Jan. 13, 1992). But the defense is not available when a person's reason for claiming the defense arose from the person's own negligence or recklessness. Johnson, 289 Minn. at 199, 183 N.W.2d at 543.

No Minnesota appellate court has applied the necessity defense in a civil implied-consent license-revocation case. Weierke, 578 N.W.2d at 816 (“[I]t has not been determined that the necessity defense is available in implied consent cases.”).² But even if a court had determined that, under the common law, the necessity defense applies in a civil implied-consent license-revocation case, it is “the province of the legislature to modify the common law.” Larson v. Wasemiller, 738 N.W.2d 300, 303 (Minn.2007). When enacting the implied-consent statute, the legislature was not required to follow the common law. However, “statutes are presumed not to alter or modify the common law unless they expressly so provide.” Id. “We generally presume that a statute is consistent with the common law and, if the legislature intends to enact a statute that abrogates the common law, the legislature will do so by express wording or necessary implication.” Goodyear Tire & Rubber Co. v. Dynamic Air, Inc., 702 N.W.2d 237, 244 (Minn.2005).

The implied-consent statute expressly limits the issues that may be addressed in an implied-consent judicial review hearing. The statute provides:

(b) The scope of the hearing is limited to the issues in clauses (1) to (10):

(1) Did the peace officer have probable cause to believe the person was driving, operating or in physical control of a motor vehicle or commercial motor vehicle in violation of section 169A.20 (driving while impaired)?

(2) Was the person lawfully placed under arrest ... ?

(3) Was the person involved in a motor vehicle accident or collision resulting in property damage, personal injury, or death?

(4) Did the person refuse to take a screening test ... ?

(5) If the screening test was administered, did the test indicate an alcohol concentration of 0.08 or more?

(6) At the time of the request for the test, did the peace officer inform the person of the person's rights and the consequences of taking or refusing the test ... ?

(7) Did the person refuse to permit the test?

(8) If a test was taken by a person driving, operating, or in physical control of a motor vehicle, did the test results indicate at the time of testing:

(i) an alcohol concentration of 0.08 or more; or

(ii) the presence of a controlled substance ... ?

(9) If a test was taken by a person driving, operating, or in physical control of a commercial motor vehicle, did the test results indicate an alcohol concentration of 0.04 or more at the time of testing?

(10) Was the testing method used valid and reliable and were the test results accurately evaluated?

Minn.Stat. § 169A.53, subd. 3(b) (emphasis added).

We agree with the district court's conclusion that the necessity defense is outside the limited scope of issues that may be addressed in an implied-consent proceeding. By expressly identifying the issues that may be addressed at a judicial review hearing, the legislature, by necessary implication, excluded issues that are not identified. The plain language of the statute does not include the necessity defense among the “limited” issues that may be addressed. When a statute is unambiguous, it is not subject to interpretation. Taylor v. LSI Corp. of America, 796 N.W.2d 153, 156 (Minn.2011) (“If the law is clear and free from ambiguity, then the plain meaning of the statute's words controls our interpretation of the statute.”); Int'l Bhd. of Elec. Workers, Local No. 292 v. City of St. Cloud, 765 N.W.2d 64, 68 (Minn.2009) (“It is the duty of this court to apply the law as written by the legislature.”); State ex rel. Coduti v. Hauser, 219 Minn. 297, 303, 17 N.W.2d 504, 507–08 (1945) (stating that a correction to a law “must be done by amendment rather than construction, there being no ambiguity in the later law”); see alsoMinn.Stat. § 645.16 (2010) (stating that the goals of statutory interpretation are to ascertain and effectuate the legislature's intent).

The legislature's intent to exclude the necessity defense from the “limited” issues that may be addressed during an implied-consent judicial review hearing is also demonstrated by another provision of the implied-consent statute, which states that “[i]t is an affirmative defense for the petitioner to prove that, at the time of the refusal, the petitioner's refusal to permit the test was based upon reasonable grounds.” ³Minn.Stat. § 169A.53, subd. 3(c) (2010). The legislature's decision to include only this affirmative defense in the implied-consent statute indicates that the legislature rejected other possible defenses, including the necessity defense. SeeMinn.Stat. § 645.19 (2010) (“Exceptions expressed in a law shall be construed to exclude all others.”).

Excluding the necessity defense from the issues that...