Breaking News: Minnesota Supreme Court Accepts Review of DWI "Necessity Defense" Case

The Minnesota Supreme Court just accepted review in the case of Axelberg v. Commissioner of Public Safety. Notable local defense attorney Ryan Pacyga will represent Ms. Axelberg, while our firm will be authoring the amicus curiae brief on behalf of both the Minnesota Association of Criminal Defense Lawyers (MACDL) and the Minnesota Society for Criminal Justice (MSCJ). Why did we ask permission to file a "friend of the court" brief? Just keep reading - this case is heart-wrenching.

Ms. Axelberg was at the family cabin with her husband, drinking, when he started violently abusing her. He took her cell phone and chased her outside to her car. When she locked herself inside the vehicle, he tried to get in - by punching the windshield hard enough to crack it.

At that point, out of options and rapidly running out of time, Axelberg started the vehicle and drove 9/10 of a mile to a nearby resort - the closest location where she could get aid. Her husband followed her, and the police were finally called to restrain him. They ultimately (and predictably) arrested the husband for assault.

What's heart-wrenching is that Ms. Axelberg, terrified and fleeing for her life, was also arrested by the police . . . for driving while impaired for the 9/10 of a mile it took to get to safety. The police also promptly revoked her driver's license.

I won't begin to tell you what I think about the decision to arrest and revoke Ms. Axelberg, but I can tell you what happened in court. Axelberg challenged the revocation of her license, and attempted to raise the defense of "necessity." This defense, admittedly difficult to prove, applies in emergency situations where an individual is in immediate peril and has no other option but to violate the law. Had Axelberg successfully proven that she really had no choice but to flee her husband in a motor vehicle, her driver's license would have been restored (months after it had already been taken, but still some relief).

However, the courts concluded that Axelberg wasn't even able to raise the defense. A majority decision from the Court of Appeals held that the necessity defense simply isn't an option under Minnesota's Implied Consent law. Highlighting the absurdity of some of our DWI laws, this effectively means that Ms. Axelberg was legally obligated to remain at a remote location with her husband and "take her lumps."

And if you want to get technical, Ms. Axelberg wasn't even entitled to hide in her car in the first place - once she got behind the wheel, she was legally in "physical control" of the motor vehicle, and if the police had somehow heard her screams from a mile away and responded before things got deadly, they still could have arrested her and revoked her driving privileges for DWI.

Now that the Minnesota Supreme Court has accepted review of the case, and granted permission to file "friend of the court" briefs on her behalf, it's our sincere and honest hope that we'll soon see the Axelberg decision reversed and that drivers in truly dangerous situations will not be penalized in an overzealous and misguided attempt to strictly enforce our DWI laws.


Suppressing Test Results Under McNeely: Winning the Battle But Not the War

I spend a lot of my time speaking with individuals who want to hire me, and our firm, as their attorneys. Lately, a lot of those conversations have involved explaining the impact of Missouri v. McNeely, what I intend to do to get their test results suppressed, and why that matters.

Answering the question, "why that matters" is what separates a great defense attorney from an average one - and when it comes to defending your liberty and your property, the difference between "great" and "average" is the difference between success and failure.


Because here's a secret an average defense attorney will never reveal - even if that blood, breath or urine test is suppressed due to a McNeely challenge, the state can still take you to trial and try to convict you of driving while impaired.

At our firm, "ready for trial" is a battle-cry, a chance for us to go toe-to-toe with the state and use our years of experience to make sure that the government does not get a conviction. For those average attorneys, however (the ones using recycled McNeely briefs and who don't really understand or believe in the issues presented) . .  well, take a look at the picture of the cute little baby at the start of this post.

An average attorney, as opposed to a great attorney, will go from the pure joy of getting a test result suppressed, to terror at having to actually take a case to trial, in about six seconds. That's not the way to win a case.

Despite the clear language of the McNeely decision, Minnesota still refuses to adjust their DWI laws to conform with the constitution. Until that day comes, either by legislative act or by judicial decree, we'll continue to fight the good fight. And we'll continue to tell our clients the honest truth: getting their test results suppressed is winning one battle, but does not necessarily mean we've won the war.

But it certainly brings us one step closer.

Charles Ramsay Discusses Warrant Requirement for Minnesota DWI Searches on KSTP Channel 5

Charles Ramsay, regular legal commentator on the local news, recently discussed the impact of the Supreme Court's decision in Missouri v. McNeely with KSTP Eyewitness 5 News.

In the wake of the tragic story involving the death of Jonathan Markle's daughter on Lake Minnetonka back in January of this year, Mr. Ramsay discussed law enforcement's failure to obtain a warrant before searching Mr. Markle, and how the legal landscape in Minnesota is adjusting to the Supreme Court's decision in McNeely.