State of Minnesota,
Respondent,

vs.

Tristam Olin Hage,
Appellant.

Renville County District Court
File No. TC99622

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

David J. Torgelson, Renville County Attorney, Chad B. Sterle, Assistant County Attorney, P.O. Box D, Olivia, MN 56277 (for respondent)

Tristam O. Hage, 5861 Cedar Lake Road, Minneapolis, MN 55416 (attorney pro se)

Considered and decided by Kalitowski, Presiding Judge, Amundson, Judge, and Harten, Judge.

KALITOWSKI, Judge

Appellant Tristam O. Hage challenges his conviction for speeding in violation of Minn. Stat. § 169.14 (1998), claiming the district court erred in determining that he failed to satisfy the legal requirements for the defense of necessity. We affirm.

The parties do not dispute the material facts, and the district court concluded as a matter of law that appellant failed to raise a sufficient defense of necessity. We are not bound by and need not give deference to a district court’s decision on a purely legal issue. Frost-Benco Elec. Ass’n v. Minnesota Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn. 1984).

Appellant claims the district court erred by failing to properly allocate the burden of proof between the parties. He argues that once he met his burden of production with respect to the necessity defense, the burden shifted to the state to disprove the defense beyond a reasonable doubt. In support, appellant cites State v. Brodie, 529 N.W.2d 395 (Minn. App. 1995), rev’d, 532 N.W.2d 557 (Minn. 1995) (order op.). But the supreme court reversed Brodie, concluding the defendant did not make a prima facie showing to support the defense of necessity. 532 N.W.2d at 557. Since Brodie, the supreme court has clarified that where intent is not an element of a crime, a defendant retains the burden of proving a necessity defense by a preponderance of the evidence. State v. Hage, 595 N.W.2d 200, 207 (Minn. 1999). Because intent is not an element of a speeding violation under Minn. Stat. § 169.14, appellant retained the burden of proof and the state was not required to disprove his claimed necessity defense beyond a reasonable doubt. Hage, 595 N.W.2d at 207.

Appellant also contends that the district court erred in finding he had not presented sufficient evidence to justify a defense of necessity. We disagree. A necessity defense defeats a criminal charge

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.

State v. Rein, 477 N.W.2d 716, 717 (Minn. App. 1991) (citation omitted), review denied (Minn. Jan. 30, 1992). In addition, the defense is available only if (1) there was no legal alternative to breaking the law, (2) the harm to be prevented was imminent, and (3) there was a direct causal connection between breaking the law and preventing the harm. Id. The defense is primarily available when the forbidden act is done to preserve life and where the harm sought to be avoided is immediate or physical. State v. Johnson, 289 Minn. 196, 201-02, 183 N.W.2d 541, 544 (1971).

Appellant argues he has met the three factors for a valid necessity defense. We disagree. Even if appellant had no alternative means of making a phone call more quickly than by speeding to the next service area, he has not shown that placing the phone call a few minutes sooner was necessary to prevent actual, imminent harm. Appellant’s actions were precipitated by a third-hand report that an individual had threatened to harm his client’s family. Although appellant was understandably alarmed and spurred to action upon hearing of the threats, they did not present the sort of imminent danger that might justify breaking the law. Moreover, appellant’s apparent failure to request assistance from the trooper who stopped him for speeding undermines his claim that he perceived the harm to be imminent. Finally, even if appellant had been able to place the phone call more quickly, he did not establish that the phone call would prevent harm to his client’s family. We conclude the district court did not err in determining that appellant failed to present sufficient evidence to justify his speeding violation on the basis of necessity.

Affirmed.