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October 31, 2023 Fall 2023

Inhalants and Impaired Driving

By Patrick Carroll, Ohio JOL

On August 10, 2019, shortly after Donna Wine arrived at an open-air farmer’s market James Woetzel drove his pickup truck through the street barricades and into the market area.  Tables were smashed with vegetables and fruits strewn on the street.  While two others were injured, Donna Wine was hit and dragged by the truck for almost four blocks; she died at the scene. 

Lacking any memory of driving through the barricades or into the market, Woetzel claimed he blacked out, unaware he dragged Donna Wine with his truck.  Officers observed Woetzel mumbling at the scene, but fully alert and oriented by the time he arrived at the hospital.   The police found a used air duster can on the passenger seat of Woetzel’s truck along with a receipt showing the purchase an hour earlier. He tested negative for alcohol and illicit drugs at the scene, but the results of a blood test were positive for difluoroethane (DFE), an ingredient in aerosol products, including air dusters.

Air dusters, designed to clean computer keyboards and other devices, represent common intoxicating inhalants, but only one of many.  More than a thousand common household or business products could qualify as a harmful intoxicant.  Readily available harmful intoxicants include everyday items, such as nail polish remover, paint thinner, glue, gasoline, many aerosol products, spray paint, and even canned whipped cream. Unlike alcohol the age restrictions placed on purchasing or obtaining alcohol, or the prescription requirement to obtain a controlled substance, most items that can be used as a harmful intoxicant are readily available for legal purchase by anyone, at any age and without a record of purchase.  Although some retailers enforce policies restricting the sale of harmful intoxicants to minors, the same products remain available for purchase online, with no age or purchase quantity restrictions, and potentially deliverable within hours.

Impact of harmful intoxicants

Harmful intoxicants or inhalants provide an immediate, intense euphoric feeling or high for a very brief period unless prolonged by continued use. Chemical vapors are inhaled, either by “huffing” an inhalant-soaked rag or bag, as with spray paint, or directly from the can with keyboard dusters, thereby inducing mind-altering effects.  Various inhalants work in different ways, but produce the same overall intoxicating effect.  Inhaled substances such as DFE, found in spray dusters, and toluene, found in paint thinner, rapidly absorb into the brain and affect the central nervous system.  Another common inhalant, nitrous oxide, used for medical and dental purposes (laughing gas) and as a propellant in food sprays such as whipped crème cannisters, by contrast, dilate and relax blood vessels. Abusers typically shoot nitrous oxide typically into a balloon and inhale it by mouth from the balloon.  Immediate effects include dizziness or drowsiness, slurred speech, lack of coordination, and sometimes blackouts, similar to the effects of alcohol.  The duration of the effects from harmful intoxicants varies, largely due to the enormous array of potentially harmful substances, their potency and concentration, and method of use.  Other factors include frequency and prolonged use, tolerance, age, and weight.

State regulation and classification

Although state laws prohibit operating a motor vehicle while intoxicated from inhalants, along with alcohol or drug impaired driving, the laws vary as to the definition of an intoxicating substance.  Washington defines an inhalant by its results, while Oregon sets out twenty-three separate chemical compounds that qualify as inhalants. Ohio defines harmful intoxicants by result of substance use, specific products, and three other primary chemical categories.

The specific definition is critical.  In State v. Torbeck,a Wisconsin court affirmed the dismissal of a third offense DUI charge on the grounds that DFE was not an intoxicant within the meaning of the Wisconsin statute for impaired driving.  In State v. Carson, a Minnesota court reversed an impaired driving conviction, finding that DFE was not listed in the applicable statute as a hazardous substance that could support a driving-while-impaired conviction.

While a statute must be sufficiently specific to describe the illegal conduct, the definitional terms applicable to impaired driving offenses must be broad enough to cover all forms of intoxicating substances.  Crafting legislative definitions of impairing or intoxicating substances represents a challenge for legislatures, and for courts when interpreting a statue, because of the ever-changing legal products and chemicals on the market with potentially intoxicating contents.  Legislatures must also respond to new trends in the abuse of products made for legitimate and legal purposes and not intended for direct, human consumption.

Detection of harmful intoxicants

Detection of the chemicals found in inhalants in a person represents a challenge for medical providers as well as law enforcement.  Unlike alcohol or drugs of abuse, harmful intoxicants generally dissipate from the body at a faster rate than other intoxicating substances. Thus, while a breath, blood, or urine test taken hours after signs of impairment may demonstrate the presence and level of alcohol or drugs in a person, the immediate effects of harmful intoxicants resolve comparatively quickly.  As an example, in State v. Bloom, the defendant was described as disoriented and incoherent immediately after the collision but was functioning normally within five minutes.  Additionally, in State v. K.F., a student found passed out with duster cans awoke disoriented but returned to normal and clear headed a few minutes later.

The frequent inability to detect harmful intoxicants results not only from the limited duration of the substance in the body, but also the type of screening or testing utilized by police.  Inhalants will go undetected by a breathalyzer.  While extended use of intoxicants such as inhalants may be detected from elevated laboratory results or gas chromatography on blood or tissue testing, valid testing methods are not readily available to law enforcement, especially on short notice from the time of arrest or investigation of a crash scene.   Lack of eye convergence may indicate inhalant use, but as with other field sobriety tests, an effective test requires immediate performance by the officer at the scene.

While a blood draw proves effective in showing traces of the chemicals associated with inhalants, sufficient evidence to support probable cause to obtain a search warrant may be lacking because the quick restoration of the driver’s normal speech and conduct.  Many times inhalants emerge as a means of suspected intoxication only upon later investigation.  To present a credible case for prosecution, police must rely on witness statements or other evidence at the scene or in the driver’s car, if readily observable, such as empty or cold aerosol cans, receipts showing time of purchase, balloons, or spray paint remnants on the driver’s clothes or face. Unlike other criminal investigations, inhalants and harmful intoxicants on the surface appear both innocuous and legal to possess.

Harmful Intoxicants and Traffic Safety

While this article focuses primarily on the intentional abuse of inhalants, negligent use of harmful inhalants may also support a DUI conviction when driver impairment results from exposure to the harmful intoxicating substance.  In State v. Apple, the driver impairment resulted from inhaling sprayed lacquer at work without the appropriate mask and in State v. Zemljic, the impairment resulted from using flea treatment chemicals without proper ventilation.

While the number of reported impaired driving cases resulting from the use of inhalants remains relatively small, many cases escape detection because of the nature of the intoxicating substance involved and the quick dissipation of signs of impairment.  Inhalant abuse, however, is on the rise, especially among adolescents.  Lack of existing research, data, standardized tests, per se limits, and measurements of substance levels contribute to the incorrect classification of cases.  The inclusion of harmful intoxicants for DUI offenses recognizes the risk of harm posed by an impaired driver, regardless of the substance contributing to the impairment.  A person operating a vehicle under the influence of a harmful intoxicant, however, creates a situation that equally as serious and potentially as deadly as an operator under the influence of alcohol or drugs of abuse.

    Patrick Carroll, retired judge

    Ohio Judicial Outreach Liaison

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