We previously reported on the difficulties of securing convictions for motorists arrested for DWI regarding substances not currently on the state law’s intoxicating substances list. To address this, in March 2018, Minnesota senators examined how current state DWI law addresses sniffing inhalants—better known as “huffing.”
The debate stemmed from the Minnesota Supreme Court’s reversal of a woman’s 2017 conviction for a DWI after she had been found slumped in her vehicle on multiple occasions after having inhaled difluoroethane (DFE). DFE is most commonly contained inside of propellant cans and is used to clean electronics equipment. DFE is marketed under the name Dust-Off.
Additionally, other states have experienced traffic accidents and tragic fatalities caused by drivers who were under the influence of DFE or other huffing chemical compounds. Because their laws failed to account for dangerous chemicals that are not considered to be Controlled Substances or other known street drugs, the at-fault drivers couldn’t be charged under current law.
In the aforementioned case, the female defendant appealed her conviction on the grounds that DFE is not currently considered to be a hazardous substance under Minnesota’s impaired driving statute (Minn. Stat. 169A). The Minnesota Supreme Court held that a driver who is intoxicated by DFE “is not criminally liable under the plain language of the current DWI statutes.”
However, the state argued that even though the statute does not specifically refer to the chemical substance, the fact that DFE shares general characteristics of other included hazardous substances and, therefore, should be included. The state further argued that it isn’t feasible to be always up-to-date with new and emerging dangerously intoxicating substances.
Regardless of the state’s argument and a dissenting opinion, the court overturned the defendant’s conviction.
Under original state law, someone is guilty of DWI if caught driving, operating, or being in physical control of a motor vehicle while under the influence of alcohol and/or a known intoxicating or controlled substance. Additionally, a person with a blood alcohol concentration (BAC) over the legal limit or who has any metabolites of a Schedule I or II controlled substance is also considered to be under the influence.
Because DFE is not illegal, it is, in fact, considered to be an intoxicating substance, and this oversight—or legal loophole—led to recent lawmakers’ discussions.
The rationale was that simply because a particular substance is not alcohol or a known “street drug” does not mean that it can’t still cause someone to become impaired and, subsequently, too intoxicated to drive safely. Even though some substances cannot be specifically tested, law enforcement officers who reasonably believe that a motorist is driving while under the influence should be able to charge said person with DWI.
losing the legal loophole
Some lawmakers such as Senator Greg Clausen (DFL-Apple Valley) saw a loophole in current state law in which DFE is not considered to be hazardous substance. Simply, the loophole excluded certain dangerous and intoxicating chemicals found in ordinary household substances—including DFE.
In response, Clausen proposed Senate File 2479 to affect OSHA standards with result to hazardous substances under the Minnesota Department of Labor and Industry. The Senate File also seeks to promote uniformity among all DWI offenses by requiring that prosecutors prove a suspect was, in fact, under the influence of alcohol and/or drugs. This Senate File has received considerable support from the State Patrol DWI Task Force, Minnesota County Attorneys Association, Minnesotans for Safe Driving, Mothers Against Drunk Driving (MADD), other law enforcement groups, and additional senators.
As a result, the Senate File was overwhelmingly supported in both congressional houses and Governor Mark Dayton signed it into law in May of 2018. As of 1 August 2018, the bill officially went into law.