Necessity No Defense to MN License Revocation

Minnesota case law summary by Attorney Richard Clem: MN implied consent, necessity defense.

Jennifer Marie Axelberg v. Commissioner of Public Safety. MN implied consent, necessity defense

During the 2011 Memorial Day weekend, Jennifer Marie Axelberg, her husband Jason, and two friends were staying at a lake cabin in Mora, Minnesota. On Sunday night, Axelberg and her husband were drinking at Fish Lake Resort, less than a mile from the cabin. After they returned to the cabin, they began arguing and Jason pushed her and hit her twice on the head.

Fearing for her safety, Axelberg retreated to the car and locked the doors. She thought this was the only safe place available because she couldn't outrun her husband, and her husband was between her and the cabin. Her husband had her cell phone, so she was unable to call for help. Her husband kept yelling at her and hitting the windshield. He eventually climed onto the car, started screaming, and broke the windshield with his fist. She started the car and started to drive away, and the husband climbed off the car. She drove back to the resort, which was the closest open business. The husband and one of his friends followed her on foot, and again confronted her in the parking lot. Someone called 911, and police arrested the husband. Axelberg was also arrested for DWI, and she agreed to a urine test, which she failed. Her driver's license was revoked under the Minnesota implied consent law, and Axelberg sought judicial review in Kanabec County District Court. At the hearing, she argued that she should not lose her license because she acted out of necessity. The district court held that necessity is not a defense to a driver's license revocation. The Minnesota Court of Appeals affirmed. She then took the case to the Minnesota Supreme Court.

The Minnesota implied consent statute, Minnesota Statute 169A.53. That statute states that the scope of the hearing shall be limited to the ten issues listed in the statute. The state argued that since the hearing is limited to these ten issues, no other defense can be raised. The Supreme Court agreed with this analysis. It noted that the Minnesota Statutes must be construed according to their plain meaning, and this statute did not allow for any additional issues. For this reason, it affirmed the revocation of the license.

Justices Lillehaug, Wright, and Page dissented. Justice Lillehaug argued that there was room for justice in the case, and noted that Axelberg was a crime victim who was only trying to avoid death or serious injury. Justice Wright argued that the result in the case was unreasonable. Justice Page wrote that the Court's ruling failed to adhere to the Court's constitutional mandate to do justice.

No. A12-1341 (Minn. May 21, 2014).

Please see the original opinion for the court's exact language.


Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).

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