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State v. Carson

Supreme Court of Minnesota

October 11, 2017

State of Minnesota, Respondent,
v.
Chantel Lynn Carson, Appellant.

         Court of Appeals Office of Appellate Courts

          Lori Swanson, Minnesota Attorney General, Saint Paul, Minnesota, Daniel A. McIntosh, Steele County Attorney, Laura E. Isenor, Assistant Steele County Attorney, Owatonna, Minnesota, and William A. Lemons, Minnesota County Attorneys Association, Saint Paul, Minnesota, for respondent.

          Cathryn Middlebrook, Chief Appellate Public Defender, Lydia Villalva Lijo, Saint Paul, Minnesota, for appellant.

         SYLLABUS

         The chemical 1, 1-difluoroethane is not a hazardous substance under Minn. Stat. § 169A.03, subd. 9 (2016), the driving-while-impaired statute, because it is not "listed as a hazardous substance in" Minn. R. ch. 5206 (2015).

         Reversed.

          OPINION

          HUDSON, Justice.

         At issue is whether the chemical 1, 1-difluoroethane (DFE) is a hazardous substance under Minn. Stat. § 169A.03, subd. 9 (2016). On three occasions, appellant Chantel Lynn Carson was arrested on suspicion of driving while impaired (DWI), and an analysis of her blood showed the presence of DFE. Carson was convicted of three counts of third-degree DWI for operating a motor vehicle while under the influence of a hazardous substance. The court of appeals affirmed her convictions. We hold that DFE is not a hazardous substance under Minn. Stat. § 169A.03, subd. 9, because it is not "listed as a hazardous substance in" Minn. R. ch. 5206 (2015). We therefore reverse the decision of the court of appeals.

         FACTS

         The facts are not in dispute. On November 16, 2014, officers responded to a call that a driver at a drive-thru of a restaurant appeared to be intoxicated. Officers found Carson parked at the drive-thru and passed out with a can of Dust-Off between her right arm and body.[1] Dust-Off is a refrigerant-based propellant used for cleaning electronic equipment.

         One week later, officers found Carson slumped over the center console of her running car. She responded after several attempts to wake her. Carson's eyes were "watery and bloodshot, " and her face was "sweaty and pale." She was "lethargic"; her "speech was slurred"; and her left hand involuntarily twitched. The police found three cans of Dust-Off in the car.

         Several months later, officers received three reports over the course of 2 hours describing a slumped driver at different locations. Each report gave the same description of the car, and one report indicated that, when being driven, the car was swerving. Officers eventually spotted the car in a parking lot and found Carson slouching in the driver's seat. Carson did not initially respond to the officer knocking on the window. When she finally responded, her eyes were "bloodshot and watery." The officer found five cans of Dust-Off in the car.

         On each of these three occasions, Carson was placed under arrest on suspicion of 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.

         In three separate cases, respondent State of Minnesota charged Carson with two counts of third-degree DWI, Minn. Stat. §§ 169A.20, subd. 1(2)-(3), 169A.26 (2016)—one for operating a motor vehicle while under the influence of a hazardous substance and one for operating a motor vehicle while under the influence of a controlled substance. Carson filed a motion to dismiss the hazardous-substance DWI charges because she claimed, in part, 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 a contested omnibus hearing, a forensic scientist testified that DFE is "a propellant commonly seen in cans . . . usually found in products used to clean keyboards on computers." The scientist explained:

[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 ...

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