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Can Inhaling Duster Get You A DWI

We all know driving under the influence is a crime. But what exactly does the law say on the subject? Minnesota law prohibits people from driving when under the influence of three things. Two are well known: alcohol and controlled substances. However, what might be less known, is that Minnesota law also prohibits people from driving when under the influence of a hazardous substance.[1]

What exactly is a hazardous substance? Minnesota defines it as “any chemical or chemical compound that is listed as a hazardous substance in rules adopted under chapter 182 (occupational safety and health).”[2] Pursuant to that chapter, the commissioner of labor and industry is authorized to issue rules. So, to sum up: a ‘hazardous substance’ is whatever the commissioner of labor and industry decides it is. Do common household products with legitimate uses, like aerosol keyboard ‘duster’ spray qualify?

In 2014, police officers responded to a call of a possibly intoxicated driver. Chantel Lynn Carson was found passed out with a can of duster in her car at a restaurant drive-thru. Chantel was placed under arrest for suspicion of inhalant abuse; her blood tested positive for DFE (the chemical in duster). Thus, she was charged with third degree DWI – operating a motor vehicle under the influence of a hazardous substance.

Later that same month, police officers again found Chantel passed out in her car with a can of duster. Her eyes were bloodshot, her face was sweaty and pale, and her speech was slurred. Again, she was tested, and again, her blood came back positive for DFE. She was again charged with third degree DWI.

In 2015, officers received a report of a car in a ditch off the side of the highway. When the officers arrived, the car was not at the scene. Approximately an hour later the officers caught up with the car, after receiving another report of a matching description. Chantel was found slouched over in the car, this time with five cans of duster. Her blood test once again came back positive for DFE, and she was charged for the third time with third degree DWI.

Chantel’s attorney moved to dismiss all three counts of third degree DWI for lack of probable cause, claiming that there was insufficient proof that she was under the influence of a “hazardous substance” as defined by the statute. Her attorney argued that DFE, the ingredient in duster, was not included in the list of hazardous substances promulgated by the commissioner of labor and industry. Certainly, the commissioner could have added it to the list. Because it wasn’t on it yet, however, it was argued that the prosecution could not bring forth the charges, no matter what evidence of the danger of duster was put forward. The district court disagreed, after hearing testimony from a forensic scientist for the Minnesota Department of Public Safety and Bureau of Criminal Apprehension. The forensic scientist testified that:

[DFE] is commonly seen in a product called Dust-Off. It is commonly abused as an inhalant simply because it is easy to obtain and you don’t need to be a particular age to acquire it or purchase it, and it will produce a pretty rapid high, as well.

. . . . The abuse comes from inhaling, whether it be through a small tube . . . or . . . a bag that is held over the nose and mouth of the person . . . .

. . . . It is flammable. . . . [T]he can is under pressure so there is a hazard . . . . If it is inhaled . . . it can [cause injury].[3]

Essentially, the prosecution’s argument was that even though duster wasn’t listed, it was so obviously a hazardous substance that it qualified anyways. Because of this testimony, the district court agreed, and found that the characteristics of duster alone made it a hazardous substance even though it was not enumerated in the list, and denied Chantel’s motion. Taking on the issue de novo,[4] the court of appeals agreed with the district court. First, the court turned to the list of hazardous substances, and cited express language recognizing that the list was incomplete: “The hazardous substance list includes most hazardous substances that will be encountered in Minnesota; it does not include all hazardous substances and will not always be current.” The court took this to mean that it was presupposed that not every hazardous substance would necessarily on the list. Next, they turned to evaluating whether duster fit the definition of a hazardous substance and cited the definition.

With this working definition, the court had no problem finding that duster fit the definition of a hazardous substance. The state’s forensic scientist testified that duster was flammable, that it could cause injury, and that it was a compressed gas. Furthermore, they pointed out that duster was toxic because inhaling its contents could be fatal, and that it was also an irritant because it could cause discomfort to the body. The court admitted that there was no precedent in Minnesota holding that duster is a hazardous substance, but they pointed to cases from other states that concluded likewise. The district court’s ruling order was affirmed.

Somewhat surprisingly, the Minnesota Supreme Court has taken up this case. Although they could have any number of reasons for doing so, and any guesses would be highly speculative, we offer up two potential reasons:

One, the Minnesota Supreme Court might have been interested in the court of appeals finding that no Minnesota precedent exists holding that duster is a hazardous substance for DWI enforcement. The theory here is that the court was extremely disturbed by this potential loophole, and wants to make it completely clear and free of any ambiguity that driving while inhaling duster or other household products is a criminal offense. Admittedly, Chantel was probably a poor test case for the argument that duster isn’t a hazardous substance, because the numerous arrests and descriptions of her passed out in her car paint a harrowing picture of inhalant abuse.

Two, and moving in the complete opposite direction, the Minnesota Supreme Court might just plain disagree that the state has the authority to charge duster as a hazardous substance under the DWI statute since it is not in the list. Time and time again recently we have seen this court back a defendant on the grounds that the statute didn’t give the state the authority to prosecute. In plain language, the DWI statute is very clear about what a hazardous substance is: “any chemical or chemical compound that is listed as a hazardous substance in rules adopted under chapter 182 (occupational safety and health).” It remains to be seen what direction the court will go in, but Minnesota DWI lawyers will be waiting to see what happens.

Matthew B. Trevor graduated summa cum laude from Mitchell Hamline School of Law in St. Paul. There, he was an Assistant Editor on Law Review and received CALI Awards for both Criminal and Constitutional Law. He was also a Mitchell Hamline Fellow; clerked for the Washington County Public Defender’s Office, the Appellate Office for the Minnesota Public Defender, and the United States Attorney’s Office. DWI Lawyers St. Paul; Minnesota DWI Attorney; and Minnesota DWI Hazardous Substance.

[1] Minn. Stat. § 169A.20, subd. 1(3) (2014).

[2] § 169A.03, subd. 9 (2014).

[3] Court of Appeals Decision Here.

[4] We previously discussed de novo review here.

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