Jennifer Axelberg wants license back after DWI to escape violent husband

Jennifer Axelberg's windshield before she drove off to escape her husband

Jennifer Axelberg is fighting the state of Minnesota to get a DWI off her driving record.

In May 2011, Jennifer, 37, was enjoying a weekend in Mora with her husband, Jason Axelberg. The couple went to a bar with friends and got a ride back to their cabin around 2 a.m. The Axelbergs got into an argument and Jason hit Jennifer in the head twice. He had her phone and blocked her from going back into their cabin so she turned around and went into the couple's car to escape.

Jason, 39, climbed onto the hood of the car and began smashing the windshield with his fist until it cracked. Scared, Jennifer put the keys into the ignition and drove to the nearest open business. Jason stayed on the hood while she backed out of the driveway.

Axelberg pulled up to Fish Lake resort about a mile away, her lawyer said. Police arrived shortly after and arrested Jason Axelberg for domestic assault and Jennifer Axelberg for driving while intoxicated.

Jennifer Axelberg and her attorney, Ryan M. Pacyga

Her BAC was .18, Jennifer says, but she thinks she was justified in driving away from her husband.

"I'm alive today," Jennifer says.

Her husband, Jason, confirms her account and says if he'd reached her, he "probably would've hit her more." Jennifer says she "probably would've needed medical attention."

The couple is now in therapy and have given up drinking, they say.

Now Jennifer is suing the Commissioner of Public Safety to petition for the court to rescind the revocation of her driver's license. Her attorney, Ryan M. Pacyga, is arguing that Axelberg's actions were necessary because she was in imminent danger from her husband.

The problem here isn't with the criminal case -- Axelberg pled guilty to careless driving -- but with the "implied consent" decision to revoke her license by the state.

The state of Minnesota is arguing that the necessity defense doesn't apply to civil driving cases.

"[D]oing so would subvert the remedial nature of Minnesota's implied consent statute by allowing admittedly drunk drivers to escape not only criminal liability, but also the civil/administrative consequences of their clearly dangerous drinking behavior," wrote assistant attorney general Jeffrey S. Bilcik in a court filing last week. (Bilcik did not return a message seeking comment.)

Bilcek also argues that Axelberg isn't covered by the necessity defense because she hasn't provided enough evidence to prove there was "imminent peril." He also claimed in his court filing that Axelberg could have taken measures to prevent the fight in the first place.

"When they left the bar she directed an expletive toward her husband which one could expect to draw a negative and possible violent response particularly after consuming alcohol," Bilcek wrote, adding that "any reasonable person could fairly conclude that the expletive directed by [Jennifer Axelberg] at a minimum contributed to the situation."

That argument outrages Pacyga.

"The idea that the commish proposes in this case is that she shouldn't have started this, that somehow she can't use a necessity defense because she started the argument, is ludicrous," Pacyga says. "I'd like to see any man tell his wife, mother, daughter: 'Hey, well you sassed off to the guy, so you deserved it.'"

No matter how the court case turns out, Axelberg will get her license back this August after a one-year revocation. But her lawyer wants to fight and see if he can get the state to recognize the necessity defense in this case and remove the DWI from her civil record.

"By the time this is over, she'll have served out her entire revocation," Pacyga says. "It's just become a matter of principle."