An appeals court last week ruled that you can’t be convicted of driving while intoxicated for “huffing” aerosol fumes. That left me wondering just how big a problem huffing while driving is.
Turns out, it’s pretty common.
Here’s a story about a woman in Casper, Wyo., arrested last year for crashing her Jeep Cherokee into a parked trailer after huffing pressurized air. It was at least the fourth such incident reported in Casper in recent years, including the 2009 conviction of a man who killed a 72-year-old woman after passing out at the wheel when he huffed pressurized air.
Here's another story out of Golden Valley, Minn., involving a man who was arrested in June for driving under the influence of a hazardous substance after running his car off a highway ramp. Police found a can of keyboard duster, a thin red straw sticking out of it, in his lap.
The same guy was arrested the very next day in a nearby jurisdiction for the same thing. (Under Minnesota law, he was able to still drive legally because the crime lab hadn't yet identified the intoxicant in his blood.)
The effects of inhaling "canned air," as it's often referred to, include lightheadedness, confusion, dizziness and euphoria. Huffers often pass out. Oh, there's another thing: It can also lead to brain damage, kidney and liver damage, heart failure and death.
The laws available to law enforcement for prosecuting driving while huffing vary from state to state. For instance, in Orem, Utah, earlier this year police pulled alongside a car and saw an 18-year-old man holding a can of Dust-Off keyboard cleaner. He was cited for abusing a psychotoxic chemical. (The same guy had an earlier police encounter for huffing Dust-Off in a store.)
In North Carolina, where a man caused a head-on collision when he passed out after huffing in June, there's a law against inhaling fumes for the purpose of causing intoxication, but it doesn't constitute intoxicated driving.
In Wisconsin, while it's illegal to huff, there are apparently no laws to deal specifically with huffing while driving. In the decision handed down last week, the District 2 Court of Appeals ruled that Marilyn Torbeck of Appleton, who crashed her Saturn Ion last year in an Appleton ditch, couldn't be charged with driving while intoxicated. Difluoroethane, a chemical commonly found in air spray, doesn't fit the definition of an intoxicant under state intoxicated driving laws. It's up to the Legislature to do something about that.
"It's a gap in the law," says Nina Emerson, director of the Resource Center on Impaired Driving at the University of Wisconsin-Madison Law School.
The court pointed out that Torbeck could have been prosecuted for reckless driving.
"Given that reckless driving and OWI are grouped under the same statutory subchapter, and given the similarities between the penalty structures, we hold that the Legislature intended that Torbeck’s conduct would fall under reckless driving and not OWI," the court writes.
But that doesn't give cops a lot of room to arrest drivers who huff but don't crash their cars.
Cops in Washington state in are the same boat. But the Legislature there is working on it. A Democratic state lawmaker has proposed a bill that would allow for an intoxicated driving charge if drivers exhibit "the effects of having inhaled or ingested any chemical, whether or not a legal substance, for its intoxicating or hallucinatory effects."
Emerson expects that the appeals court ruling will likely prompt some interest among Wisconsin lawmakers, who will be looking for politically neutral things to do now that, perhaps, the major partisan battles have been fought.
After all, they've tried before. In 2007 a bipartisan group of lawmakers signed onto a bill that would have broadened the definition of "intoxicant" under the intoxicated driving law to include "a substance that is inhaled, ingested or otherwise consumed in a manner that is contrary to its intended use or labeling, and that is inhaled, ingested or otherwise consumed to induce intoxication or elation, to stupefy the central nervous system, or to change the human audio, visual or mental processes."
That bill, however, never made it out of committee.
"This is something that would really be a good thing for everybody to sort of wrap their arms around and sing 'Kumbaya' and pretend they get along," Emerson says. "What is there to be against?"
But even then, huffing while driving could be tricky to prosecute.
"Usually it's so fast-acting that by the time somebody's been apprehended it's no longer in their system," says Emerson. "So it's hard to capture that evidence."
But after statehouses in the nation recognize the problem and pass laws against huffing while driving, what's next?
As Emerson points out, "You just don't know what people are going to use to get high."
What about paint or glue? And there's no end to the supply of intoxicating substances out there. Did you know you can get LSD-like highs from morning glory seeds? Same with belladonna, deadly nightshade, jimson weed, mandrake, mace and nutmeg.
Can they ban driving while under the influence of nutmeg?