In State v. Torbeck, (not recommended for publication) the court of appeals affirmed the trial court’s dismissal of a third offense OWI charge because the substance that defendant “huffed” (1, 1-Difluoroethane [DFE]) before she crashed her car is not an “intoxicant” under s. 346.63(1)(a). DFE is also not a controlled substance, a controlled substance analog or a drug as defined by statute. “Intoxicant” is not defined in the definitions section of the Vehicle Code. The Wisconsin Jury Instructions (Wis. J.I.-Criminal 2600 (2011)) define “under the influence” as follows:
“Under the influence” means that the defendant’s ability to operate a vehicle was impaired because of consumption of an alcoholic beverage.
To its credit, the State argued the plain dictionary meaning of “intoxicant” as “something that intoxicates” and “intoxicate” as “to excite or stupefy by alcohol or drug…” The only problem is that while DFE may intoxicate, it is not alcohol or a drug and the circular reasoning is completed without success.
The court of appeals concluded that Torbeck’s behavior was better suited to being charged under the reckless driving statute than OWI. When the legislature takes up business again, perhaps one issue that can be resolved from a bi-partisan standpoint is a broader definition of “intoxicant.” In fact, a 2007 bill that did just that (but didn’t go anywhere) could easily be resurrected to get the job done. Steve Elbow does a nice job discussing this topic in his Capital Times blog.
By the way, The legislature criminalized huffing–even the intent to huff a “hazardous substance”–in 2005. If a person distributes or intends to distribute hazardous substances for huffing, the person is subject to a Class I felony. Since the act of huffing or trafficking in huffing materials is criminal, it stands to reason that a person should not legally be able to huff and drive a motor vehicle.