Court says huffing chemical not intoxicant (UPDATE)

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By TODD RICHMOND

Associated Press

MADISON, Wis. (AP) – A judge correctly dismissed an impaired driving charge against a woman accused of “huffing” because the chemical she allegedly inhaled doesn’t qualify as an intoxicant under Wisconsin law, a state appeals court ruled Wednesday.

State law prohibits drivers from operating a vehicle while under the influence of an intoxicant, drugs or substances similar to drugs that impair safe operation. But the law doesn’t mention anything about the chemical the woman allegedly inhaled and the substance doesn’t qualify as an intoxicant under the dictionary definition, the 2nd District Court of Appeals ruled.

The decision stems from a case involving 40-year-old Marilyn Torbeck of Appleton. According to court documents, she was driving in Oshkosh last year when she nearly hit a mini-van and crashed her car into a ditch.

A sheriff’s deputy reported Torbeck appeared confused and didn’t remember the crash. She was taken to a hospital, where a doctor began to suspect she was impaired due to “huffing,” the practice of inhaling chemicals to get high.

A blood test revealed she had 1, 1-Difluoroethane, or DFE, a chemical commonly found in air spray cans, in her system. She was cited with third-offense operating while intoxicated, a misdemeanor.

Winnebago County Circuit Judge Karen L. Seifert threw the case out. She ruled DFE isn’t an intoxicant, a drug or a substance similar to a drug under the law’s definition.

District Attorney Christian Gossett appealed. He argued that DFE causes euphoria and diminished muscle control, and a state chemist testified that the chemical causes “marked impairment” in driving skills. Gossett contended that failing to protect the public from huffers runs counter to the intent of Wisconsin’s OWI laws.

The appeals court sided with Torbeck, though. DFE isn’t listed as a controlled substance under state or federal law, the court said, and Gossett didn’t produce any evidence that it’s substantially similar to a controlled substance.

The court also said the Merriam-Webster online dictionary defines “intoxicate” as exciting or stupefying by alcohol or drug and DFE is neither.

Torbeck’s conduct would fall under reckless driving, not OWI, since she nearly hit the mini-van, the court said.

A telephone message left at Gossett’s office Wednesday afternoon wasn’t immediately returned. Torbeck’s attorney, Walter Piel, also didn’t immediately return a telephone message left at his office.