This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




Troy Jeffrey Brueggemeier,




Commissioner of Public Safety,


Filed April 27, 1999


Foley, Judge[*]

Hennepin County District Court

File No. 476-164

Brent S. Schafer, Gerald Miller & Associates, 210 North Second Street, Suite 101, Minneapolis, MN 55401 (for appellant)

Mike Hatch, Attorney General, Kelly S. Kemp, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103 (for respondent)

Considered and decided by Peterson, Presiding Judge, Foley, Judge, and Holtan, Judge.[**]

FOLEY, Judge

Appellant seeks review of the trial court's order sustaining the revocation of his driver's license. He asserts the court erred in concluding (1) the defense of necessity is not available in an implied consent proceeding, and (2) even if the defense were available, appellant failed to establish a prima facie case of necessity. We affirm.


On June 13, 1998, appellant Troy Brueggemeier and three friends, Eric Pelness, Jennifer Burriss, and Tim Spalding, decided to go boating. At about 2:00 p.m., Pelness, Burriss, and Spalding got into Brueggemeier's boat and set off for Big Island, an island in Lake Minnetonka. Brueggemeier and Pelness agreed that Pelness would be the "designated driver" and remain sober in order to drive the boat.

Brueggemeier initially drove the boat away from the dock and through the channel. While Brueggemeier was driving the boat, Pelness drank a beer. Brueggemeier then handed control of the boat over to Pelness and drank a beer. Brueggemeier again drove the boat when they were having difficulty "planing out" near Big Island.

When they got to Big Island, they docked the boat near their friends' boats. Brueggemeier and Burriss stayed on or near his boat, but Pelness and Spalding split off from the group and joined Pelness's friends.

During the course of the afternoon, Brueggemeier consumed approximately five or six beers. Burriss consumed one beer and two cocktails. Brueggemeier testified Pelness drank a beer and a mixed drink. He also admitted Pelness could have been drinking during the three hours they were apart. Brueggemeier and Burriss testified Pelness did not appear to be drunk. There was no testimony concerning the amount of alcohol consumed by Spalding. But Brueggemeier believed of the four individuals, Pelness had consumed the least alcohol.

At approximately 7:00 p.m., Brueggemeier and his friends left the island with Pelness driving the boat. As he proceeded along the shoreline toward the docks, Pelness collided with another boat and came to a stop about 200 yards from shore.

Following the collision, Pelness refused to continue driving. Brueggemeier noticed a large crack on the outside of the boat. The crack extended below the water line, and water was coming up through the floor of the boat. Brueggemeier surmised the boat's hull had filled with water. Because the boat had been stopped in the water for less than a minute, Brueggemeier concluded the boat was in imminent danger of sinking.

Brueggemeier observed the boat that he believed had collided with them approximately 50 to 100 yards away. He also saw a second boat traveling toward the boat that had collided with them. Brueggemeier saw no other boats and did not see anyone at the Hennepin County water patrol station located on the bay.

Brueggemeier began to drive the boat. When he was about 100 yards from shore, he saw the water patrol boat leaving the dock and heading toward the boat that had collided with them. Brueggemeier did not stop or otherwise try to get the attention of the patrol boat.

When Brueggemeier reached the dock, he turned on the bilge pump to pump water from the boat's hull. Shortly after Brueggemeier docked his boat, a Hennepin County water patrol deputy approached on a water patrol boat. The deputy arrested Brueggemeier for boating while under the influence of alcohol. Pelness was also charged with boating while under the influence of alcohol.

On June 13, 1998, Brueggemeier was issued a notice of driver's license revocation pursuant to Minn. Stat. § 169.123 (1996 & Supp. 1997).[1] On June 30, he filed a petition for hearing to challenge the revocation of his driver's license. Pursuant to Brueggemeier's petition for judicial review, a hearing was held on August 27. At the hearing, Brueggemeier stipulated that he had driven a boat while under the influence of alcohol on June 13, 1998. He indicated the only issue to be decided was whether his actions were justified because of an emergency situation. The commissioner objected to the court's consideration of the necessity defense on grounds that the defense is not available in implied consent proceedings.

The trial court reserved its ruling and took evidence on the defense of necessity. Brueggemeier and Burriss were the only witnesses. At the end of the hearing, the court directed a verdict for the commissioner.[2] It ruled the necessity defense is not available as a matter of law in an implied consent case and, even if it were available, Brueggemeier failed to meet the requirements of the defense. On August 27, 1998, the trial court issued its order sustaining the revocation of Brueggemeier's driving privileges.


Brueggemeier urges this court to adopt as a rule of law the defense of necessity in implied consent proceedings. In response, the commissioner contends the necessity defense is only a defense to criminal actions and, therefore, the defense is not available in an implied consent proceeding--a civil proceeding.

The appellate courts have never expressly stated the necessity defense is available in implied consent proceedings. See Weierke v. Commissioner of Pub. Safety, 578 N.W.2d 815, 816 (Minn. App. 1998) (stating the availability of the defense of necessity in implied consent proceedings has not been determined). Minnesota courts have only applied the defense of necessity in criminal cases. See, e.g., State v. Brodie, 532 N.W.2d 557, 557 (Minn. 1995); State v. Rein, 477 N.W.2d 716, 717 (Minn. App. 1991), review denied (Minn. Jan. 30, 1992).

As an error correcting court, it is not for us to create a new defense in an implied consent proceeding; that role is for the legislature or the supreme court. See Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn. App. 1987), review denied (Minn. Dec. 18, 1987) ("[T]he task of extending existing law falls to the supreme court or the legislature, but it does not fall to this court.").

Even assuming the defense of necessity available in the present case, we conclude Brueggemeier failed to meet his burden of presenting sufficient evidence of the defense to present a fact question.

The defense of necessity exists if:

(1) there is no legal alternative to breaking the law, (2) the harm to be prevented is imminent, and (3) there is a direct, causal connection between breaking the law and preventing the harm.

Rein, 477 N.W.2d at 717 (quoting United States v. Seward, 687 F.2d 1270, 1275 (10th Cir. 1982)). Applying this test to the instant case, it is apparent Brueggemeier did not present sufficient facts to establish a prima facie case of necessity. Brueggemeier did not establish injury was imminent to the occupants of the boat or that there were no alternatives to breaking the law.


[*] Retired judge of the Minnesota Court of Appeals, serving by apointment pursuant to Minn. Const. art. VI, § 10.

[**] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals pursuant to Minn. Const. art. VI, § 10.

[1] Minn. Stat. § 86B.331 (Supp. 1997) specifically applies Minn. Stat. § 169.123 to persons who operate motorboats.

[2] The commissioner acknowledges that although it moved for a directed verdict under Minn. R. Civ. P. 50.01 at the close of Brueggemeier's case, because this was not a jury trial, it should have requested an involuntary dismissal of Brueggemeier's case under Minn. R. Civ. P. 41.02(b). Because the commissioner requested, and the trial court granted, a directed verdict, both parties addressed the standard of review for a directed verdict in their briefs. Similarly, we will consider this case in light of the directed verdict standard. See Kozak v. Weis, 348 N.W.2d 798, 801-02 (Minn. App. 1984) (holding trial court did not abuse its discretion in directing verdict against plaintiff at the close of his case-in-chief for failure to establish an essential element, rather than dismissing cause of action without prejudice under Minn. R. Civ. P. 41.02).