Thursday, June 05, 2014

Minnesota's high court gets it wrong again

I'm a bit late on this, but it's still interesting, so I wanted to touch base on it.  Recently, the Minnesota Supreme Court ruled that the necessity defense does not apply in cases that deal with a person's loss of their driver's license for a DWI. 

It's a case called State v Axelberg and it's a case where the court had a perfectly situated defendant for the necessity defense, but instead of doing justice, the Court did nothing and furthered the injustice of the situation. 

The summary of the facts of the case, as well as a more detailed account of the case, is available at  Since they did a nice job of summarizing the case, I'll quote them: 

Axelberg, who had been drinking, was assaulted by her husband at a remote location where they were vacationing.  Axelberg, without a cell phone, eventually locked herself in her car to avoid her husband's assault.  After he punched the windshield hard enough to break it, she started the vehicle and fled to a nearby resort, driving less than a mile.  Axelberg's husband followed her on foot, and was only prevented from further assailting Axelberg when police were called to the resort.  Axelberg's husband was arrested and taken into custody...and the Commissioner of Public Safety revoked Axelberg's driver's license due to the fact that her alcohol concentration was over the legal limit.
Oh my. Where to begin?

This is a perfect case demonstrating that rote, discretion free, legal policy and outcomes are stupid and end up resulting in anything but justice.

The first thing that makes me shake my head in disgust is what were the officers who responded thinking when they arrested the victim for a DWI at that point in time?  Officers have discretion to charge or not charge people--that's why sometimes you get a speeding ticket when someone else doesn't.  The officers certainly could have assessed the situation and determined that, given what had happened, it wasn't necessary to charge Axelberg with a DWI.  You know, show a little compassion for the woman whose husband just SMASHED A WINDSHIELD WITH HIS FIST WHILE SHE WAS IN THE CAR.  I'm sure it was something having to do with the fact that the officers are "supposed to" arrest people they suspect of DWI, regardless of the situation.  Because when we just create a bright-line rule, everything is much easier, since then we don't have to actually think about things.  We can just shrug our shoulders and say, "This is what I have to do, no matter what." 

Next, we have the Commissioner of Public Safety, who again decides that using our brains is too hard and we should just follow the rote letter of the law, even if it's completely ludicrous and unjust.  So, Axelberg gets her license revoked because she was driving, operating, or in physical control of a motor vehicle while her alcohol concentration was more than .08.  No review as to the fairness of this given the circumstances or listening to her reason as to why she had to drive.  Just follow the rules, strictly and rigidly, because we clearly live in a black and white world--no gray areas whatsoever. 

The really sad and frustrating part of this ruling is that Axelberg's "DWI" was completed the moment she entered the vehicle to try to escape from her husband.  Not when she actually drove the car to the nearest neighboring locale; simply when she got into the car and sat in the driver's seat with the keys in her hand.  Trying to establish a protective barrier around herself from her windshield-smashing husband was enough to make her lose her license. 

This is because the DWI laws don't require someone to actually be driving the car to be arrested for a DWI.  And if you are arrested for a DWI and take the breathalyzer test and it's a .08 or more, you automatically lose your license seven days later.  That means that if you realize you're too drunk to drive and decide you'll just sleep it off in your car, you could be arrested for a DWI and lose your license.  In that situation, you would be in "physical control" or "operating" the car, even though you aren't driving it.  Physical control and operation have been stretched in their definitions so broadly, I've seen cases charged out where the person was asleep in the driver's seat and the keys were in a bag in the backseat, well out of the person's reach while seated in the driver's seat, because conceivably they could get ahold of the keys and drive away. 

Oh, and don't think that they need a conviction on a DWI to be able to yank your license.  No, no, no...they yank it oftentimes before you've ever even been in court for your first appearance.  And if your DWI charge is reduced to a careless or you're acquitted, that doesn't necessarily mean that you aren't still going to get your license revoked.  You have to go through a whole separate legal process to contest the revocation of your license. So even being found not guilty on a DWI charge isn't a guarantee that you won't still find yourself without a license.

So, the problem with the Court's ruling is not simply that it makes no sense to penalize a woman for fleeing an attacker and using the only means of effective escape available to her, but it also makes no sense when you take into account that, even if she hadn't driven anywhere, she would still be in the same predicament with her license.  Simply the act of getting in the car to seek shelter and protection from the danger she was in was sufficient to cause her to lose her license.  Because she was in physical control and/or operating the motor vehicle. 

The impact of that ruling is astonishing.  Simply seeking shelter or cover or protection inside a car that you can lock the danger out of is enough to revoke your license if you've been drinking.  A woman at a bar who was drinking and who is sexually assaulted escapes her attacker and runs to her car for safety.  No more license for her.  A guy out camping with friends and drinking suddenly sees a bear in his campsite and they all climb into the car to avoid being mauled to death.  No more license for the person in the driver's seat.  A man out ice fishing who slips and ends up w/ a leg in the ice hole climbs into his car and starts it to keep warm until his pants are dry (I actually had a case like this a few years ago).  No more license for that man. 

Simply being in the car is a DWI, according to our laws.  If you are in a position to operate or be in physical control of the car, you've committed a DWI.  Operate and physical control are almost always found when the person has the keys to the car, which most of the time, the person would have because people lock their cars an in order to get back in to a car, you'd need the keys.  So, possessing the keys and being in the car is usually enough to establish that you're operating or in physical control of the car. 

I get that DWIs are bad.  But, again, we let this insane cult-like obsession with ridding the streets of dangerous, deadly drunk drivers lead us to ridiculous ends.  Like penalizing a woman for trying to not get the shit kicked out of her.  Like penalizing someone for trying to stay warm in a car on a bitterly cold winter night while they wait for their ride to come pick them up from the bar.  And so on and so forth. 

I understand that people who drive drunk are a danger to everyone on the roads.  I'm not saying they aren't.  I'm saying that when the justice system refuses to see that not every person in a car with a .08 or more alcohol concentration is the type of person we are trying to protect society from, we aren't doing justice.  We aren't furthering the cause of preventing drunk drivers.  We're simply using the law as a sledgehammer to punish people who don't deserve to be punished.


  1. Just curious: In your area, can the PD office help with administrative license suspensions? Or is that not something you can get into because it's technically not a criminal matter?

    1. It's outside our realm since it's considered a civil matter.