In the wake of Axelberg v. Comm’r of Pub. Safety, the legislature decided to expand the scope of defenses available for implied consent hearings. Now, a person may raise the common law affirmative defense of necessity in an implied consent hearing (Minn. Stat. 169A.53, subd. 3(b)(11); subd. 3(h)). This means: did the person act out of necessity – the emergency avoidance of death or serious bodily injury – when they committed the act leading to the revocation of their driver’s license? This is one of the new DWI laws in effect since August 1, 2015.
Axelberg’s act of necessity occurred after her spouse hit her twice in the head, she took refuge in a car, and her spouse climbed on the hood and broke the windshield. Even though she was under the influence of alcohol, she decided it was necessary to drive away. While she could later raise the defense of necessity in criminal court for her DWI charge, it was not available for her to get her driver’s license revocation rescinded at her implied consent hearing according to the Minnesota Supreme Court. While the crux of the Minnesota Supreme Court’s decision hinged on statutory interpretation, the dissenters also stressed how manifestly unjust it is to prohibit the use of the necessity defense in implied consent hearings.
Implied consent hearings are quasi-criminal in nature. A prior impaired driving-related loss of license is considered a qualified prior impaired driving incident, which is an aggravating factor for DWI criminal cases. What does that mean? It means, if your driver’s license is taken away because of a DWI incident, then that fact alone can be used to make a future DWI more severe within a ten-year period, even if you are not convicted of a DWI in criminal court. Hence, the injustice when a defense is available in a DWI criminal proceeding and not in an implied consent hearing.
Surprisingly, the prescription-drug affirmative defense did not enjoy the same inclusion into implied consent hearing defenses this legislative session. A person’s driver’s license may be revoked for driving while impaired because their body contains any amount of a schedule I or II controlled substance. This past year the Minnesota Court of Appeals decided Dornbusch v. Comm’r of Pub. Safety. Along the same reasoning as the supreme court in Axelberg, the court of appeals decided someone with a prescription for a schedule I or II controlled substance could not use that as a defense in an implied consent hearing, even though it is available in a DWI criminal case. This is no less unjust than prohibiting the necessity defense in implied consent cases.
For now, adding the necessity defense to implied consent hearings is a step in the right direction. But adding all defenses available in DWI criminal proceedings, such as the prescription-drug defense, to implied consent hearings is the just thing to do.
Robert H. Ambrose is a Minnesota criminal defense lawyer/ Minneapolis DWI lawyer. Has a Lead Counsel Rating for Drunk Driving Defense and has been named a “10 Best” DWI Attorney in Minnesota for client satisfaction. He has successfully litigated various issues arising in Implied Consent hearings. He provides affordable, aggressive, and understanding representation.
 Implied consent hearings are civil matters. They occur after someone files a petition for judicial review in the county where the DWI occurred. When someone is arrested, or convicted of, a DWI and their driver’s license is revoked as a result, they may petition for judicial review within thirty days. If they fail to challenge their driver’s license revocation within that time, then they waive their right to challenge it. The revocation then stays permanently on their driving record, even if they are not convicted of a DWI in criminal court.
 The other ten issues available in implied consent hearings include such things as did the police officer have probable cause to believe a person committed a DWI; did a lawful DWI arrest occur; did the police officer inform the person of their rights and the consequences of taking or refusing the test, etc.? For a full list of issues available see Minn. Stat. 169A.53, subd.3(b).
 One of the new DWI laws that went into effect was reducing the alcohol concentration from .20 to .16 as an aggravating factor.