(dissenting).
The majority concludes that the common-law defense of necessity is not available in an implied-eonsent proceeding under Minn.Stat. § 169A.53 (2010). While *688we recognize that no Minnesota appellate court has ever expressly recognized the defense, no published opinion has foreclosed its availability. Because I believe that the defense is available in cases where extraordinary circumstances exist, I respectfully dissent.
On May 30, 2011, appellant Jennifer Ax-elberg faced the agonizing choice of remaining trapped in a car while her violent husband tried to break the windshield to beat her up or driving while under the influence of alcohol less than a mile to what she hoped was safety. Axelberg and her husband were drinking on the evening of May 30 at a resort near the lake cabin where they were staying. After walking back to their cabin from the resort, the Axelbergs resumed an argument that began earlier in the evening. They were standing outside the cabin near their car as the argument escalated into physical violence when Axelberg’s husband shoved her and hit her twice on the head.
To avoid being further assaulted, Axel-berg got into the car and locked the doors. She testified that she only entered the car because she had no other options. Her husband stood between Axelberg and the cabin, and she could not call for help because he had taken her cell phone earlier in the evening. Leaving by foot was not possible because she was in an unlit, unfamiliar area and Axelberg knew that her husband could outrun her. Axelberg reasonably feared for her safety, and testified that she did not intend to drive the car anywhere.
After Axelberg locked herself in the car, her husband jumped onto the hood of the car, screamed at her, and punched the windshield hard enough to spider the glass. Axelberg testified that when her husband pounded on the window, she was “really, really scared.” Only then did she start the car and back out of the driveway with her husband still on the hood, pounding on the windshield. Her husband got off the car and, as Axelberg drove away, he continued to yell at her and run after the car.
Axelberg drove back to the resort where they had been earlier, which was only nine-tenths of a mile from the cabin. Her husband eventually arrived at the resort on foot and continued his aggressive behavior. A person staying at the resort intervened and called the police. Axel-berg’s husband was eventually charged with and convicted of domestic assault and disorderly conduct for striking his wife. The commissioner revoked Axelberg’s driver’s license under the implied-consent law.
At the judicial-review hearing on her driver’s license revocation, Axelberg admitted that she drove her car while intoxicated, but asserted the affirmative defense of necessity. She contended that the imminent physical harm posed by her husband’s aggressions left her with no legal alternative but to drive the car to escape to safety. The district court sustained the revocation, concluding that the necessity defense is not available in a civil license-revocation proceeding. Because of its conclusion, the district court declined to analyze whether the necessity defense applied to the unique circumstances of Axelberg’s case.
Necessity as a defense to a criminal act is widely recognized in Minnesota under the theory that “an act done from compulsion or necessity is not a crime.” State v. Johnson, 289 Minn. 196, 201, 183 N.W.2d 541, 544 (1971). The Minnesota Supreme Court has considered the defense even when it is not specifically provided for by statute. Id. at 200-02, 183 N.W.2d at 544-45. The defense “applies only in emergency situations where the peril is instant, overwhelming, and leaves no alternative *689but the conduct in question.” Id. at 199, 183 N.W.2d at 543; see also State v. Rein, 477 N.W.2d 716, 717 (Minn.App.1991) (“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.” (quotation omitted)), review denied (Minn. Jan. 30,1992).
The most recent published appellate court opinion considering the availability of the necessity defense in an implied-consent case is Weierke v. Commissioner of Public Safety, 578 N.W.2d 815 (Minn.App.1998). The Weierke court noted that “it has not been determined that the necessity defense is available in implied consent cases,” but did not decide the issue because no evidence supported the application of the defense in that particular case. Id. at 816. Thus, whether a necessity defense may be raised in an implied-consent case is still an open question under Minnesota law.
To be sure, the implied-consent statute unequivocally limits the scope of issues that may be raised in a judicial-review hearing after revocation. Minn.Stat. § 169A.53, subd. 3(b) (2010). But the statute also expressly allows a petitioner to raise reasonable test refusal as “an affirmative defense,” and does not state that this defense is the only available defense. Id., subd. 3(c) (2010).
While a general rule of construction requires us to assume that the expression of one thing is the exclusion of another, see Minn.Stat. § 645.19 (2012), caselaw is clear that we are not to construe a statute “in derogation of well-established principles of common law ... unless so required by express words or by necessary implication.” Swogger v. Taylor, 243 Minn. 458, 465, 68 N.W.2d 376, 382 (1955); see also State v. Caldwell, 803 N.W.2d 373, 383 (Minn.2011) (stating that while we must assume that “the expression of one thing is the exclusion of another,” we only apply this rule “when the language of the statute supports such an inference”). Here, nothing in the statutory language shows that the legislature intended to foreclose recourse to the traditional, common law principle that, in rare cases, violation of a law may be justified to serve a greater public interest.
In addition, this court has, in fact, previously recognized an affirmative defense not listed in the statute. In Dutcher v. Commissioner of Public Safety, we held that a petitioner can assert post-driving consumption as an affirmative defense to an implied-consent revocation. 406 N.W.2d 333, 336 (Minn.App.1987). Thus, judicial recognition of the availability of an affirmative defense other than the one specifically listed in the statute is not unprecedented.
The majority correctly notes that necessity is most often applied as an affirmative defense to a criminal charge, and that an implied-consent proceeding is civil in nature. While past caselaw has highlighted the “quasi-criminal consequences” of an implied-consent driver’s license revocation, see Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 832 (Minn.1991) (quotation omitted), courts have more recently held that an implied-consent proceeding is unequivocally civil in nature. See, e.g., Harrison v. Comm’r of Pub. Safety, 781 N.W.2d 918, 919-20 (Minn.App.2010) (recognizing that an implied-consent proceeding is civil in nature).
But the criminal/civil distinction is not a persuasive justification for declining to apply the defense in a civil implied consent action. Necessity has long been recognized as a defense in civil tort actions. See, e.g., Restatement (Second) of Torts § 197 (1965) (stating that “[o]ne is privileged to enter or remain” on the land of *690another, i.e., trespass, if it is “necessary to prevent serious harm” to people or property); Restatement (Third) of Torts § 15(f) (2010) (stating that liability for negligence per se is excused if “the actor’s compliance with a statute would create a greater danger than the actor’s violation of the statute”). Our neighboring state, Wisconsin, has also recognized that the necessity defense is available for “strict liability” civil offenses in some circumstances. State v. Brown, 107 Wis.2d 44, 318 N.W.2d 370, 375-77 (1982). The criminal/civil distinction, therefore, should not operate to defeat the application of the common-law necessity defense in a civil implied-consent case. Nor would the availability of the defense impair the commissioner’s ability to easily and quickly process implied-consent cases because the defense applies only rarely, in emergency situations.
I would therefore hold that necessity is available as an affirmative defense in an implied-consent proceeding. This well-established common-law defense provides a necessary safe harbor for those unfortunate few caught in a Hobson’s choice where “obedience to the law would ... endanger[ ] some higher value.” Johnson, 289 Minn. at 201, 183 N.W.2d at 544 (quotation omitted). The defense is narrow and difficult to prove, but the facts of Axelberg’s case warrant consideration of its application here.
A review of the district court record suggests that Axelberg had “no legal alternative to breaking the law,” “the harm to be prevented [was] imminent,” and “a direct, causal connection [existed] between breaking the law and preventing the harm.” See Rein, 477 N.W.2d at 717. Whether the defense ultimately applies, however, is a factual determination we must leave to the district court because of its unique position to judge the weight of the evidence and the credibility of witnesses. I would therefore reverse the district court’s decision and remand for further findings on whether the facts of Axelberg’s case meet the demanding requirements of the necessity defense.