Minnesota woman who drove drunk to flee abuse fights DWI

(CNN) -- A Minnesota woman is hoping the state's highest court will clear her driving history of drunken driving charges she incurred as she fled from her abusive husband a little more than two years ago.


Jennifer Axelberg's attorney Ryan Pacyga tells HLN that he believes the case is the \"first of its kind in the nation.\" He also says the case is the collision of two important public policies: one that protects the public's safety and another that concerns the safety of domestic violence victims.


The fight


Axelberg was arrested on suspicion of driving while intoxicated on May 30, 2011, after being assaulted by her husband, Jason Axelberg, according to documents Pacyga filed with the court.


The couple had traveled that evening with a friend to Jason Axelberg's parents' cabin, located in rural Kanabec County, Minnesota. According to the court documents, the group walked about a mile to a resort and consumed several alcoholic beverages at a tavern.


The couple began to argue at the tavern, and later -- when they returned to the cabin -- the verbal dispute resumed.


\"The fight quickly escalated to the point of physical abuse. Mr. Axelberg pushed (his wife) in the chest and hit her in the head twice,\" the documents say. \"The Axelbergs had previously attended marriage counseling. (Jennifer Axelberg) was instructed in counseling that she should run if an altercation with Mr. Axelberg became physical.\"


Eventually, to get away from her husband, Jennifer Axelberg got in a vehicle and locked the doors.


\"Mr. Axelberg continued to yell at (his wife). He jumped onto the hood of the vehicle, and punched the windshield with force sufficient to spider the glass on the driver's side,\" according to documents Pacyga filed with the court. Jennifer Axelberg says she had no other means of getting away from her husband other than to drive away from the scene. She started the car and headed back toward the resort where they'd been drinking earlier.


Shortly after Jennifer Axelberg arrived at the resort, her husband showed up and his \"aggressive behavior\" reportedly continued. An unidentified witness at the resort was concerned enough about their behavior to call 911.


Jennifer Axelberg was charged with DWI that night, and her husband was charged with domestic assault. Ultimately, Pacyga says, prosecutors knocked down Axelberg's DWI charge to careless driving, to which she pleaded guilty.


Axelberg's license was revoked effective August 4, 2011, for six months. Pacyga says that despite the fact that Axelberg's license has since been reinstated, she still wants to fight the revocation, because she feels passionately that domestic violence victims should not be punished this way.


The Minnesota Department of Public Safety is fighting Jennifer Axelberg's appeal. The state agency has filed documents with the court that do not dispute the fact that Axelberg's husband became violent that night. He was later convicted of domestic assault.


\"Mr. Axelberg admitted that he struck the Appellant twice,\" states documents the agency's attorneys filed with the court. \"While (Jennifer Axelberg) was locked inside the car Mr. Axelberg struck the windshield causing it to crack.\"


However, the agency argues that Jennifer Axelberg did not act like she was in danger when the police responded to the scene at the resort.


\"(Jennifer Axelberg) did not appear to be in imminent danger. (Axelberg) displayed no observable injuries,\" states documents the agency's attorneys filed with the court. \"She did not request emergency service. In fact, (Axelberg) asked (the responding deputy) to take her back to the cabin so she could address the situation. (Axelberg) did not want any other assistance from law enforcement.\"


The law


Pacyga argues that Jennifer Axelberg should be entitled to use the necessity defense in light of the danger she was facing.


\"Necessity is an affirmative defense 'if the harm that would have resulted from compliance with the law would have significantly exceeded the harm actually resulting from the defendant's breach of the law.' The defense is applied 'only in emergency situations where the peril is instant, overwhelming, and leaves no alternative but the conduct in question,'\" according to documents Pacyga filed.


However, the Minnesota Department of Public Safety has filed documents that argue the necessity defense is a matter of criminal law and should not be applied in this civil case. The documents also claim that allowing the necessity defense in cases of DWI would mean more drunken drivers on the road. The agency argues that even if the defense were allowed in this case, Axelberg hasn't carried the burden of proving the defense of necessity.


\"Despite significant advancements in the arena of gender equality, violence between women and their intimate partners remains the largest cause of injury to women in the United States today. Adopting a position that the necessity defense can never apply in (license revocation) cases would deny complete protection to victims, like (Jennifer Axelberg), who under current law may be forced into Hobson's choice: driving while under the influence, or stay and be beaten, raped or killed,\" Pacyga's documents say.


Pacyga also argues that allowing the necessity defense in this case will not increase the number of drunken drivers on the road because, \"necessity is seldom raised and difficult to prove.\"


Attorneys presented their oral arguments in Axelberg's case to the Minnesota Supreme Court last week, but the court has not issued its ruling yet.


A spokesman for the Department of Public Safety told HLN his agency would not comment about ongoing litigation.


Pacyga says Jason and Jennifer Axelberg have both given up drinking and have reconciled their relationship. The Axelbergs declined to comment for this report. 

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