The week of October 9, 2017, was again not the most interesting one in the jet-setting world that is MN case law. However, if you are a difluoroethane (DFE) user, this week means the world to you. State v. Carson, A15-1687 In November of 2014, officers responded to call to a drive-thru restaurant about a passed out patron. The MNSC was discreet about the restaurant but we all know it was Taco John’s. Passing out in the driveway is unfortunate because you are so close to your reward that you can smell it, but then you go and pass out. The passed out person seeking a super burrito was slumped over in her car. As you can imagine she was pretty messed up. Court’s language, not mine. One can of Dust Off was found in the car. One week later the same thing. Slumped in a running car, potato oles everywhere with three cans of Dust Off Several months later, the same thing happened at a different location. The court did not name the other location but we all know it was another Taco John’s. The only difference was this time they were five cans of Dust Off.
On each of those occasions, Ms. Carson was placed under arrest for DWI. The police obtained blood samples from Carson on the first two occasions and a urine sample on the third occasion. Subsequent analysis revealed the presence of DFE and clonazepam. She filed a motion to dismiss saying that there was insufficient evidence that she was under the influence of a “hazardous substance” as defined in Minn. Stat. § 169A.03, subd. 9. During the hearing, a scientist testified to the following:
“[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 district court said that DFE was a hazardous substance. The Court of Appeals agreed and the Supreme Court got the final word in the neverending debate of whether or Dust Off is like the Sizzurp. In Minnesota, it is a crime to drive, operate, or be in physical control of a motor vehicle while “the person is knowingly under the influence of a hazardous substance that affects the nervous system, brain, or muscles of the person so as to substantially impair the person’s ability to drive or operate the motor vehicle.” Minn. Stat. § 169A.20, subd. 1(3). A hazardous substance is defined as “any chemical or chemical compound that is listed as a hazardous substance in rules adopted under chapter 182 (occupational safety and health).” Minn. Stat. § 169A.03, subd. 9 (emphasis added). Chapter 5206 contains a specific rule on hazardous substances, which includes a “[l]ist of hazardous substances” in alphabetical order. See Minn. R. 5206.0400, subp. 5. Rule 5206.0400 also states: “The hazardous substance list includes the majority of hazardous substances that will be encountered in Minnesota; it does not include all hazardous substances and will not always be current.” Id., subp. 1.
Carson said that DFE is not included in the list of hazardous substances. The State said the list of not exhaustive. Then the court engaged in a spirited debate about what list means. The American Heritage Dictionary of the English Language 1024 (5th ed. 2011) (defining the verb “list” as “[t]o make a list of; itemized” and a “list” as a “series of names, words, or other items written, printed, or imagined one after the other”). The State said that “list” includes characteristics of DFE that make it a hazardous substance.
Think of it, like this… you are in a relationship and when you look at the characteristics of a relationship a lot of boxes are checked. However, without an official Facebook status update, you are not the official relationship list. And you have never met any of their friends. Therefore, the State’s argument is there is a relationship by implication, but the MNSC said Dust Off on the hazardous substance list are just friends and can see other people. It makes sense because if the legislature wanted to criminalize a person under the influence of any hazardous substance they would have said that. But, they made a list. So my sense is Dust Off will be on the banned substance list so if you want a little kick with your potato oles while driving, you better do it quick. Difluoroethane in the membrane, difluoroethane in the brain.
