We all know that driving while under the influence of alcohol is a crime. But when, if ever, is it justifiable? Should an impaired driver be permitted to drive to safety to avoid a rape, attempted murder, or assault? According to the Minnesota Attorney General’s office, the answer is no, under NO circumstances. Not even if that crime victim drives merely blocks to a police station or the first public place in site.
The “necessity defense” is a difficult defense to prove. 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.” In order to establish the necessity defense, one must show that (1) there was no legal alternative to breaking the law; (2) the harm to be prevented was imminent; and (3) there was a direct and causal connection between breaking the law and preventing the harm. Necessity is unavailable as a defense if the choice of action is “necessitated by recklessness or negligence;” the defendant could have “avoided the emergency by taking advance precautions” or by “advance preparation;” or the defendant “knowingly placed himself in a prohibited position merely because to commit the act would be more convenient.”
While Minnesota law recognizes the necessity defense in criminal cases, courts have yet to approve the defense to Implied Consent cases. What that means is that even if a judge or jury agrees that the driver is not guilty in a criminal case due to necessity, the driver still suffers consequences, including a permanent DUI on their driving record, license revocation, criminal enhancement, potential vehicle forfeiture, potential loss of employment and other consequences. So if an impaired woman is being raped, momentarily escapes and drives her car to the nearest place for help, she will be punished with a DUI on her driving record and lose her license no matter what. That isn’t right, and Minnesota courts have an opportunity to fix this problem.
While the Minnesota Court of Appeals has never definitively ruled on the issue, it has refused to apply the defense in several cases. Historically, the court has basically offered 3 reasons for declining the extend the necessity defense to implied consent cases: (1) the particular facts did not meet the elements of necessity (which is understandable); (2) the court is not authorized to create the defense (which is not accurate); and (3) “we have never done it before” (which takes us back to the stone age). The most recent decision on the issue came in the summer of 2012. In Solorz v. Comm’r of Pub. Safety, the Court hinted that the necessity defense should not be an affirmative defense in implied consent proceedings. The court’s reasoning is summed up as follows:
- Implied consent hearings are limited to the ten enumerated issues in the implied consent statute.
- Because the statute names only one affirmative defense, i.e. reasonable refusal, the doctrine of expressio unius excludes any other affirmative defenses, including necessity.
- Constitutional issues are available as a defense (even though they are not included in the ten enumerated issues and are not listed as an affirmative defense, thereby purportedly being excluded via expressio unius).
- While the affirmative defense of post-driving consumption does not conform to the above rules, this Court has nonetheless recognized the affirmative defense in Dutcher v. Comm’r of Pub. Safety because it is good public policy.
This table helps illustrate the inherent contradictions in Solorz:
|A: Implied consent hearings are limited to ten enumerated issues listed in Minn. Stat. § 169A.53, subd. 3(b).||
||But courts have permitted other defenses beyond the ten enumerated issues.|
|B: Because the statute names only one affirmative defense, i.e. reasonable refusal, the doctrine of expressio uniusexcludes any other affirmative defenses, including necessity. Id.||
||But the Court of Appeals, in Dutcher, recognized an affirmative defense that the legislature “purposefully excluded” via expressio unius.|
|C: Constitutional issues can be raised as a defense .||
||Yet Solorz recognized Constitutional issues are exceptions anyway.|
|D: Post-driving consumption is a valid affirmative defense because it is good public policy, as ruled in Dutcher.||
||Rules A, B and C are directly violated. And the claim that the Court of Appeals is only an error correcting court flies in the face of Dutcher, where this Court expressly created an affirmative defense to implied consent cases.|
The court has unquestionably created exceptions to the ten enumerated issues when it sees fit, otherwise its own logic would preclude application of Constitutional issues as well as the defense of post-driving consumption. Solorz is self-contradicting, and necessarily leads to this conclusion: The court has the ability to recognize a common law affirmative defense to implied consent proceedings, and has already done so in Dutcher.
There are only two logical positions the court can take: (1) admit that it has exercised the power to create an affirmative defense and do so again; or (2) admit that it has exercised the power to create an affirmative defense and say it does not want to ever permit necessity to be an affirmative defense in implied consent cases, even when rape, assault, or murder are what create the necessity.
In the interest of full disclosure, I have a case up on appeal with the following facts: a woman and her husband were at a remote location and both were intoxicated. An argument ensued, and the husband pushed the woman, then hit her twice in the head. He had her cell phone in his pocket so she couldn’t call for help. Immediately after he hit her, she jumped into the car and locked the doors to create a safe barrier between her and her husband. She did NOT start the car. Her husband became enraged, jumped on the hood of the car, and started beating on the windshield directly in front of her. He beat the windshield so hard that it broke like a spider web (about 3 feet in diameter). Once her husband broke the windshield, the woman feared that he would get through it to continue assaulting her, so she started the car and backed up. Her husband still did not get off of the hood until she started driving forwards. She drove to the first public place in the area, a little less than a mile down the road. Her husband pursued her on foot. When she arrived at the public place, another man had to intervene to protect her from her husband, who pursued her all the way there. Police ultimately charged the husband with domestic assault for putting the woman in imminent fear of bodily harm or death, and he pleaded guilty to that. What is perverse is that the police also charged her with DUI, and the Minnesota DMV, represented by the Attorney General’s office, penalized her. The judge found that he had no choice but to deny her necessity defense because, so far, Minnesota appellate courts have not recognized the necessity defense in implied consent cases.
Here’s what the windshield looked like after her husband broke it:
Society has come so far in recognizing domestic abuse. We now have resources such as shelters, counseling, domestic abuse courts, increased criminal penalties and the like. To find that the necessity defense is never available in implied consent cases is a step backwards. The floodgates will not open because the necessity defense is difficult to prove. There are limited circumstances, where the peril is so great, that necessity is appropriate. To find otherwise is draconian and creates a Hobson’s choice: driving while under the influence, or stay and be beaten, raped or killed.
Ryan Pacyga defends people accused of crimes in State and Federal courts around the nation. He is based in Minneapolis, MN. For more information, visit www.arrestedmn.com or follow him on Twitter @ArrestedMN