Axelberg v. Commissioner of Public Safety

848 N.W.2d 206, 2014 WL 2118224, 2014 Minn. LEXIS 237

• Court: Supreme Court of Minnesota
• Decided: May 21, 2014
• Docket: No. A12-1341
• Status: Published

Opinions

OPINION

GILDEA, Chief Justice.

The question presented in this case is whether a person who has had his or her driver’s license revoked under Minnesota’s implied consent law may raise the common law affirmative defense of necessity in a civil implied consent hearing under Minn. Stat. § 169A.53, subd. 3 (2012). Because we conclude that the plain language of the statute does not permit a person to raise the affirmative defense of necessity at an implied consent hearing, we affirm.

This case arises out of a domestic assault incident that took place over Memorial Day weekend in 2011. Appellant Jennifer Marie Axelberg (Axelberg), her husband Jason Axelberg (Jason), and two of their friends were staying at a lake cabin in Mora. On Sunday night, Axel-berg and Jason were drinking at the nearby Fish Lake Resort. After they returned to the cabin, Axelberg and Jason started to argue while they were outside the cabin. Jason pushed Axelberg and hit her twice on the head.

Fearing for her safety, Axelberg got into her car and locked the doors. Axel-berg retreated to the car because she felt that it was the only safe place available to her. Axelberg did not believe she could outrun her husband. And she could not go inside the cabin, because Jason was between her and the cabin. Finally, Axel-berg could not call for help, because Jason had her cell phone.

Even after Axelberg got into the car, Jason continued to yell at her and started hitting the car’s windshield. Eventually, Jason climbed onto the car, started screaming, and broke the windshield with his fist. Axelberg then started the car. Jason was still on top of the car, but he eventually climbed off as Axelberg started driving. Jason ran after Axelberg, yelling. Axelberg drove nine-tenths of a mile to Fish Lake Resort, the closest open business. Jason and one of the friends then walked to the resort, where Jason again confronted Axelberg in the parking lot. Someone at the resort called 911.

Law enforcement arrived at the resort at around 2:28 a.m. and arrested Jason. An officer also arrested Axelberg for driving while impaired. Axelberg was asked to take a chemical test for the presence of alcohol, and she agreed to a urine test. The test revealed an alcohol concentration of .16, which is twice the legal limit. See MinmStat. § 169A.52, subd. 2(1) (2012).

Pursuant to Minnesota’s implied consent law, respondent, the Commissioner of Public Safety, revoked Axelberg’s driver’s license. Minn.Stat. § 169A.52, subd. 4 (2012). Axelberg sought judicial review of the revocation. MinmStat. § 169A.53, subd. 2 (2012).¹ At the implied consent hearing, Axelberg argued that she should not lose her license because she acted out of necessity to protect herself from her violent husband. The district court held that necessity is not an affirmative defense that drivers may raise to challenge a civil license revocation. A divided court of appeals affirmed. Axelberg v. Comm’r of Pub. Safety, 831 N.W.2d 682 (Minn.App.2013). We granted Axelberg’s petition for further review.

I.

On appeal, Axelberg argues that she may raise the necessity defense at the implied consent hearing held pursuant to Minn.Stat. § 169A.53, subd. 3 (2012).² The Commissioner argues that the statute does not permit drivers to raise the necessity defense. The parties’ arguments present an issue of statutory interpretation, which we review de novo. In re Welfare of J.B., 782 N.W.2d 535, 589 (Minn.2010). When a statute is “clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit.” Minn.Stat. § 645.16 (2012). We agree with the Commissioner that the plain language of Minn.Stat. § 169A.53, subd. 3, does not allow drivers to raise the necessity defense.

Minnesota law requires the Commissioner to revoke a person’s driver’s license when the Commissioner receives a certification from a peace officer stating, in part, that the person submitted to a chemical test for the presence of alcohol and the test results indicated an alcohol concentration of .08 or higher. Minn.Stat. § 169A.52, subd. 4. A person may seek judicial review of the license revocation by filing a petition for judicial review. Minn. Stat. § 169A.53, subd. 2. The statute requires that the district court hold an implied consent hearing on the petition for review. Id., subd. 3. And the statute limits the “scope” of an implied consent hearing. Id. Specifically, under Minn. Stat. § 169A.53, subd. 3(b), “[t]he scope of the hearing is limited to the issues in clauses (1) to (10).” None of the 10 issues listed involve the necessity defense. See id.3

The Commissioner argues that because the necessity defense is not included in the list of issues to which the Legislature has “limited” the implied consent hearing, drivers may not raise that defense. We agree. The Legislature has directed that words in Minnesota statutes are construed according to their “common and approved usage.” Minn.Stat. § 645.08 (2012). The word “limited” means “[c]on-fined or restricted within certain limits.” The American Heritage Dictionary 1019 (5th ed.2011). The use of the word “limited” in Minn.Stat. § 169A.53, subd. 3, then, means that the issues a driver may raise at an implied consent hearing are restricted to those that fall within the topics in clauses (1) through (10) of section 169A.5B, subdivision 8(b). Because the necessity defense does not fall within one of those topics, the plain language of the statute compels us to hold that drivers may not raise the necessity defense at implied consent hearings.

Notwithstanding the Legislature’s use of the term “limited” in subdivision 3(b), Ax-elberg argues that the scope of the hearing should not be so strictly confined. After all, Axelberg notes, the Legislature has provided for an affirmative defense in subdivision 3(c). In this subdivision, the statute provides that “[i]t is an affirmative defense for the petitioner to prove that, at the time of the refusal, the petitioner’s refusal to permit the test was based upon reasonable grounds.” Minn.Stat. § 169A.53, subd. 3(c). The Legislature’s inclusion of one specific affirmative defense does not lead us to conclude that the Legislature meant to also include other affirmative defenses, such as the necessity defense, nor does it create an ambiguity as to the Legislature’s intent.

An ambiguity might be created if the Legislature had provided for an affirmative defense that is not encompassed within the 10 issues that drivers may raise at the implied consent hearing. Inclusion of such a separate defense might call the meaning of the word “limited” into question and indicate that the word “limited” in subdivision 3(b) was not, in fact, meant to exclude the use of affirmative defenses. But that is not the case with respect to the affirmative defense that the Legislature specified in subdivision 3(c). The presence of the “reasonable grounds to refuse” affirmative defense does not open up the statute to additional affirmative defenses or create ambiguity as to the meaning of “limited” because the court could determine that whether the refusal was “reasonable” is within the scope of the issue listed in clause (7): whether the person refused to permit the test.⁴ Id., subd. 3(b)(7).

In addition, if we were to read “an affirmative defense” in subdivision 3(c) to allow for innumerable other affirmative defenses to be offered at implied consent hearings, we would be reading the word “limited” in subdivision 3(b) out of the statute entirely. The rules of statutory interpretation do not permit us to do that. See Minn.Stat. § 645.17(2) (2012) (“[T]he legislature intends the entire statute to be effective and certain.”).⁵

Axelberg also argues that we should reject the interpretation that reasonable refusal, as specified in subdivision 3(c), is the only affirmative defense available because we do not presume that statutes derogate the common law unless they do so expressly or by necessary implication. Brekke v. THM Biomedical, Inc., 683 N.W.2d 771, 776 (Minn.2004) (“We have long presumed that statutes are consistent with the common law, and if a statute abrogates the common law, the abrogation must be by express wording or necessary implication.” (citations omitted) (internal quotation marks omitted)). Because there is no indication that the Legislature meant to restrict common law defenses in the Implied Consent Law, Axelberg argues, the common law defense of necessity must still be available. Axelberg’s argument fails, though, because the canon of construction on which Axelberg relies does not apply to the Implied Consent Law, Minn.Stat. §§ 169A.50-.53 (2012), and even if it did, application of the canon confirms that the Legislature intended to preclude drivers from raising the common law defense of necessity.

As the Commissioner rightly points out, modern regulatory legislation, such as the implied consent administrative scheme, is “generally regarded as a newly conceived system of legal arrangements to deal with emergent problems in society.” 3 Norman J. Singer & J.D. Shambie Singer, Statutes and Statutory Construction § 61:3, at 364 (7th ed.2008). Such legislation “is not subject to the rule of strict construction of statutes in derogation of the common law because its genesis and conception are wholly outside and apart from any common-law frame of reference.” Id.; see also Sec. Sav. & Loan Ass’n v. Wauwatosa Colony, Inc., 71 Wis.2d 174, 237 N.W.2d 729, 731-32 (1976) (“An exception to the rule of strict construction is customarily made in the case of a statute which purports to provide a complete system of law covering all aspects of the subject with which it deals, so as to supersede all prior law on the subject, whether common or statutory law.” (citation omitted) (internal quotations omitted)). The Implied Consent Law exists outside of the common law and in that statutory scheme, the Legislature has provided a “complete system of law” on the topic of administrative license revocation for impaired drivers. See See. Sav. & Loan Assn., 237 N.W.2d at 731-82. Accordingly, the canon of construction that we discussed in Brekke is not applicable here.⁶

Moreover, even if the canon of construction were applicable, as Justice Page contends in dissent, it would not support Axel-berg’s position that the necessity defense is available. Consistent with the canon, if the Legislature’s words expressly or by necessary implication preclude application of the common law, the common law does not apply. Brekke, 683 N.W.2d at 776. The Legislature did not expressly state in the Implied Consent Law that it was abrogating the common law. But that is the necessary implication of the Legislature’s decision to “limit[ ]” the “scope” of implied consent hearings to the 10 issues listed in Minn.Stat. § 169A.53, subd. 3(b). See Urban v. Am. Legion Dep’t of Minn., 723 N.W.2d 1, 4-6 (Minn.2006) (finding the Legislature had clearly stated that “licensees” were responsible under the Civil Damages Act thus impliedly did not intend for the common law doctrine of respondeat superior to apply to CDA liability).⁷

Axelberg next argues that the common law defense of necessity should be available because we have referred to the implied consent law as “quasi-criminal,” and therefore, common law defenses available in criminal cases should likewise apply to implied consent cases. We have used the “quasi-criminal” label to describe the consequences of license revocation. See Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 832 (Minn.1991); Prideaux v. State. Dep’t of Pub. Safety, 310 Minn. 405, 411, 247 N.W.2d 385, 389 (1976). At the same time, however, we have also recognized that once a driver has made a decision regarding testing, the proceeding “divide[s] clearly into its civil and criminal aspects.” Prideaux, 310 Minn. at 410, 247 N.W.2d at 389. The criminal proceedings serve to punish the driver. See Minn.Stat. §§ 169A.20-.285 (2012). The civil proceedings, however, “protect public safety on the highway.” Goldsworthy v. State Dep’t of Pub. Safety, 268 N.W.2d 46, 49 (Minn.1978). A driver’s decision to challenge the Commissioner’s administrative license revocation falls squarely on the civil side of the division. Id. Therefore, even if the necessity defense is available in the context of a criminal case for driving under the influence, that would not allow us to ignore the plain language of Minn.Stat. § 169A.53, subd. 3(b), which “limit[s]” “[t]he scope of’ implied consent hearings.⁸

Finally, Axelberg and our dissenting colleagues argue that is it bad public policy to force victims of domestic abuse to choose between license revocation and personal safety. This public policy concern should be directed to the Legislature because we must read this state’s laws as they are, not as some argue they should be. See In re Estate of Karger, 253 Minn. 542, 548, 93 N.W.2d 137, 142 (1958) (“What the law ought to be is for the legislature; what the law is, rests with the courts.”); see also Minn.Stat. § 645.16 (“[T]he letter of the law shall not be disregarded under the pretext of pursuing the spirit.”). As sound as the public policy arguments may be, the only way to reach the conclusion that the common law affirmative defense of necessity is available here is through an act of pure judicial will. But as we recognized long ago, “[w]e have no personal or judicial will to accomplish,” and we have no power to judge “acts of legislation [as] either good or bad.” State ex rel. Benson v. Bd. of Comm’rs, 186 Minn. 524, 528, 243 N.W. 851, 853 (1932).

In essence, Axelberg’s argument and the analysis of our dissenting colleagues prioritizes a policy that protects victims of domestic abuse over a policy that protects the public from impaired drivers. Axel-berg contends that she was in fear for her life and that she made the only choice she could, given her husband’s violent behavior. But it is also true that when she made that choice, and drove with an alcohol concentration that was more than twice the legal limit, Axelberg created a substantial risk to public safety. That Axelberg did not harm anyone is fortunate, but that fact does not provide a basis for us to discount the public safety risk impaired drivers present. See Heddan v. Dirkswager, 336 N.W.2d 54, 63 (Minn.1983) (“[D]runken drivers pose a severe threat to the health and safety of the citizens of Minnesota.”). This case therefore could be cast in terms of competing policy considerations, with policies aimed at protecting victims of domestic abuse competing with policies aimed at protecting victims of impaired drivers. The statute in this case, however, addresses only the latter. See Goldsworthy, 268 N.W.2d at 49 (“The primary thrust of the implied consent law is remedial and intended to protect public safety on the highway.”). We decline Ax-elberg’s and the dissents’ invitation to prioritize a policy goal that is not expressed in the statute at the expense of one that is the clear focus of the legislation. In short, if the Implied Consent Law needs revision in order to make it embody a more sound public policy, the Legislature, not the judiciary, must be the reviser.⁹

Affirmed.

1 . We have referred to the hearing held on the driver’s petition for judicial review as the "implied consent hearing.” E.g., State v. Underdahl, 767 N.W.2d 677, 686 (Minn.2009). We adopt the same terminology here.

2 . The common law necessity defense has been used to excuse criminal conduct in "emergency situations where the peril is instant, overwhelming, and leaves no alternative but the conduct in question.” State v. Johnson, 289 Minn. 196, 199, 183 N.W.2d 541, 543 (1971). We have said that, in most criminal cases when the defense is recognized, the illegal act of the defendant was done "for the preservation of life.” Id. at 201, 183 N.W.2d at 544. We have also recognized that necessity is a defense in civil tort actions. Id. And while we have addressed an issue involving a jury instruction given on the necessity defense in the context of a criminal case for impaired driving, see State v. Hage, 595 N.W.2d 200, 204 (Minn.1999), we have not addressed specifically whether the defense is available in the context presented here.

3 . The issues are:

(1) Did the peace officer have probable cause to believe the person was driving, operating, or in physical control of a motor vehicle or commercial motor vehicle in violation of section 169A.20 (driving while impaired)?

(2) Was the person lawfully placed under arrest for violation of section 169A.20?

(3) Was the person involved in a motor vehicle accident or collision resulting in property damage, personal injury, or death?

(4) Did the person refuse to take a screening test provided for by section 169A.41 (preliminary screening test)?

(5) If the screening test was administered, did the test indicate an alcohol concentration of 0.08 or more?

(6) At the time of the request for the test, did the peace officer inform the person of the person’s rights and the consequences of taking or refusing the test as required by section 169A.51, subdivision 2?

(7) Did the person refuse to permit the test?

(8) If a test was taken by a person driving, operating, or in physical control of a motor vehicle, did the test results indicate at the time of testing:

(i) an alcohol concentration of 0.08 or more; or

(ii) the presence of a controlled substance listed in Schedule I or II or its metabolite, other than marijuana or tetrahydrocannabinols?

(9) If a test was taken by a person driving, operating, or in physical control of a commercial motor vehicle, did the test results indicate an alcohol concentration of 0.04 or more at the time of testing?

(10) Was the testing method used valid and reliable and were the test results accurately evaluated?

Minn.Stat. § 169A.53, subd. 3(b).

4 . The dissents of Justices Lillehaug and Wright argue that if the reasonable-grounds-to-refuse affirmative defense is relevant to clause (7), then the defense of necessity must also be relevant to some of the other issues to which the implied consent hearing is "limited.” Minn.Stat. § 169A.53, subd. 3(b). But the Legislature did not provide in the statute for the availability of the necessity affirmative defense as the Legislature did for the reasonable-grounds-to-refuse affirmative defense. Essentially, the dissents propose to add words to the statute that the Legislature did not supply. Our precedent does not permit us to do that. See Rohmiller v. Hart, 811 N.W.2d 585, 590 (Minn.2012) ("We cannot add words or meaning to a statute that were intentionally or inadvertently omitted.”). The dissents also suggest that the necessity defense does not expand the scope of the issues to which the hearing is limited because necessity is relevant to some of the issues listed in clauses (1) to (10). Justice Lillehaug argues that the affirmative defense of necessity is relevant to the issue of "driving, operating, or ... physical control of a motor vehicle,” a topic he contends is included in clauses (1) and (8) of the statute. Justice Wright does not rely on clause (1), but contends necessity is relevant to clause (8). The dissents are mistaken. Clauses (1) and (8) focus on the government and its burden. Specifically, clause (1) asks whether the police officer had probable cause to believe the driver was intoxicated. Clause (8) asks about the results of the chemical tests administered by law enforcement. Neither clause invites an inquiry into why a person may have decided to drive under the influence. Accordingly, the reason for the driver's action is not relevant to the issues listed in clauses (1) or (8). Cf. Minn. R. Evid. 401 (defining relevant evidence as "having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable”). The affirmative defense of reasonable grounds to refuse, by contrast, addresses the driver’s behavior and the driver’s behavior (i.e. refused to permit a test) is the subject of the issue listed in clause (7). The Legislature's provision for the driver to prove that her refusal was based on reasonable grounds therefore does not create ambiguity as to the Legislature’s limitation on the scope of the implied consent hearing.

5 . In dissent, Justice Wright also argues that precluding the necessity defense leads to an "unreasonable result,” citing Minn.Stat. § 645.17(1) (2012) (”[T]he legislature does not intend a result that is absurd, impossible of execution, or unreasonable.”). The dissent argues that under Minn.Stat. § 169A.53, subd. 3(c), "a person who refuses a chemical test for intoxication is permitted to assert the defense of necessity in arguing that the refusal was reasonable,” and that it would be "unreasonable” for the Legislature then to not allow such a defense to a person who agreed to take the test and failed. We disagree. As an initial matter, Justice Wright builds her analysis on a premise that this case does not present. Specifically, Axelberg did not refuse the test. Whether Axelberg would have been able to claim "necessity” as a "reasonable refusal,” as Justice Wright's analysis presumes, therefore is simply not presented here. More importantly, the rule of construction that Justice Wright cites is "not available to override the plain language of a clear and unambiguous statute, except in an exceedingly rare case in which the plain meaning of the statute ’utterly confounds’ the clear legislative purpose of the statute.” Schatz v. Interfaith Care Ctr., 811 N.W.2d 643, 651 (Minn.2012). This is not that rare case. The legislative purpose of the implied-consent laws is "to protect public safety on the highway.” Goldsworthy v. State Dep't of Pub. Safety, 268 N.W.2d 46, 49 (Minn.1978). The plain language of the statute serves this purpose; it does not confound it.

6 . In his dissent, Justice Page argues that because we applied the canon of construction in Brekke we must similarly apply it here. Justice Page’s dissent argues that the statute at issue in Brekke—Minn.Stat. § 181.79 (2012)— "was unknown at common law,” and he supports this conclusion with a citation to 48B Am.Jur.2d Labor and Labor Relations § 2818 (2005). In this section, the author writes that “[t]he Fair Labor Standards Act ... is designed to implement social and economic policy through remedies not only unknown to common law but often in derogation of it.” The citation is not helpful to the dissent’s point because Minn.Stat. § 181.79, the statute at issue in Brekke, is not part of the Fair Labor Standards Act or Minnesota's version of that federal law. See Minn.Stat. § 177.21 (2012) ("Sections 177.21 to 177.35 may be cited as the 'Minnesota Fair Labor Standards Act.’ ”). More importantly, the statute at issue in Brekke restricts the ability of employers to make deductions from employees’ wages and provides employees with a private right of action for an employer’s violation of the statute. This statute creates a new cause of action but it does not create an entire system of law in the way that the Implied Consent Law does. The dissent also relies on Neuber-ger v. Hennepin Cnty. Workhouse, 340 N.W.2d 330 (Minn.1979). But the dissent’s reliance on Neuberger is misplaced, because as the dissent notes, we did not even discuss, much less invoke, the canon asserted in the present case.

7 . Axelberg argues that Minn.Stat. § 169A.53, subd. 3(b), does not limit the issues that may be raised in an implied consent hearing because we have allowed parties to raise constitutional issues that are not mentioned in the statute at such hearings. See Friedman v. Comm'r of Pub. Safety, 473 N.W.2d 828, 832 (Minn.1991) (addressing the Minnesota constitutional right to pre-testing counsel in an implied consent case). This case, however, does not involve a constitutional challenge to Axelberg’s license revocation. In addition, while the Legislature is free to create a regulatory scheme that exists entirely outside of the common law, it is not free to create a regulatory scheme that violates the constitution. Thus, the fact that we have considered such constitutional challenges in an implied consent case does not mean that a driver may raise any challenge whatsoever at an implied consent hearing.

8 . As noted above, we have recognized the defense of necessity in civil tort cases. See supra n. 2. Justice Page's dissent therefore is mistaken in contending that we conclude "that the necessity defense is unavailable because that defense only applies in criminal cases.”

9 . The parties raised a number of other statutory construction arguments, such as the argument that remedial statutes must be broadly construed in favor of public safety and against the private interests of the drivers involved. But such canons of construction operate only after we have concluded that a statute is ambiguous. Billion v. Comm’r of Revenue, 827 N.W.2d 773, 778 (Minn.2013). Because we find that Minn.Stat. § 169A.53, subd. 3(b), is unambiguous, we do not need to reach those arguments here.