of Appeals Office of Appellate Courts
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.
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.
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 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. Dust-Off is a
refrigerant-based propellant used for cleaning electronic
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.
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.
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.
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.
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