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Montana Supreme Court Decides Whether an Inhalant Chemical is a Drug for a DUI

June 9, 2015 DUI/OWI/DWI

In State of Montana v. Pinder, the Montana Supreme Court case took up the issue of whether a chemical inhaled to get high is a “drug” under the driving under the influence law.

What Happened in the Case

The facts of the case are simple. Mr. Pinder was arrested for driving while intoxicated by a chemical known as DFE, which stands for 1,1-Difluoroethane. DFE is found in refrigerant-based propellants used in cleaning products for electrical equipment such as keyboards.

DFE is inhaled through a process called huffing. Use of DFE can produce loss of inhibitions, dizziness, lightheadedness, delusions, and hallucinations.

Mr. Pinder had crashed his truck into a light pole. Police found him nearby exiting a bathroom at a motel. Police believed he was intoxicated, claiming Pinder was having difficulty walking, standing, or following commands. The police also found a can of aerosol that contained the DFE. A blood draw revealed DFE to be in his system.

The Law and Legal Arguments

Montana Law prohibits driving under the influence of a drug. The law does not define the word ‘drug,’ however.

Pinder’s argument was that in the absence of a definition, the Court should adopt the definition of drug as found in a different area of Montana Law. Pinder pointed to a definition of the word drug in a section of Montana law talking about pharmacy regulation.

This pharmacy law defined drug as a substance recognized as a drug in in the context of treatment of illness.

The chemical DFE and other solvent chemical inhalants would not fall under this definition of drug (that’s why he argued it). Indeed, these chemicals are not traditional drugs such as cocaine or LSD, but are industrial gasses, glues, and paints. Read out article on Inhalant Use in Michigan for a longer list of the chemicals.

The trial Court rejected Pinder’s argument, reasoning it would not make sense to adopt the definition of drug under a pharmacy statute for a DUI law. The trial court instead looked to the definition of drug contained in the Black’s Law dictionary, which defines drug as a natural or synthetic substance that alters one’s perception or consciousness.

The Court’s Decision

The Court did not adopt Pinder’s argument that the pharmacy law’s definition of drug should be used. The pharmacy law’s purpose is to regulate the administration of legal drugs. Instead, the Court looked to the purpose of the DUI law for direction.

The purpose of DUI law is to protect the public from persons whose ability to drive safely is impaired from drugs or alcohol. While many drugs are dealt with in a pharmacy setting, there are many intoxicating substances that exist outside of that setting.

A definition of drug as an intoxicating substance that alters perception and consciousness is more relevant to criminal law, the Court said. The concept of a drug in this context puts drivers on notice about substances that would put someone at risk of a DUI charge.

The Court ruled that DFE is a drug in the context of DUI Law. Therefore, the Court held that driving under the influence of DFE is against the law in Montana.

Compare the Montana Supreme Court’s result with the Minnesota Supreme Court case on a DFE DUI in Minnesota.

Montana Law v. Michigan Law

In Michigan, it is against the law to drive under the influence of an inhalant such as DFE. This crime called operating while intoxicated by an intoxicating substance. The Michigan legislature purposefully made the law broad with the inclusion of any intoxicating substance for the DUI laws.

An intoxicating substance is any inhalant as well as any substance found in several national registries listed under the Michigan OWI statute. For a conviction of OWI by DFE in Michigan, the prosecution would have to prove the person was under the influence of DFE when operating a vehicle.

Further, Michigan breaks its drugged driving OWI laws down by the schedule of the substance. A person can be convicted of OWI for driving with any amount of a schedule 1 substance or cocaine in their system. A person can be convicted of OWI for any scheduel 2, 3, 4, or 5 substance if the person is shown to be under the influence of that substance. Under the influence means the ability to drive was substantially lessened.

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Call Sam Bernstein 734-883-9584 or e-mail at

Sam Bernstein is a DUI Attorney in Ypsilanti and Ann Arbor.


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