Not yet illegal to huff canned air while behind the wheel, court rules

The Massachusetts Appeals Court today overturned a man's conviction for operating under the influence of a controlled substance because the difluoroethane propellant in the can of compressed air he was observed huffing while in his running car in Malden is not on a state list of prohibited substances.

However, the court did uphold Manuel Sosa's conviction for negligent driving because he rolled through a stop sign, appeared passed out while behind the wheel of his car when it was stopped but still running, "the defendant's vehicle sped off down the street, abruptly starting and stopping repeatedly," he failed to comply with a police officer's requests - and seemed unable to do so - and that two people did see him huffing the aerosol can while driving.

The court noted that when a passerby saw Sosa apparently passed out behind the wheel of his car, he knocked on the window. Sosa then woke up, took a hit off a can of computer-cleaner canned air, then drove off.

When police Officer Philip Halloran arrived, he approached the vehicle, which was parked in the middle of a two-way street and had its engine running. Officer Halloran could see that the defendant was reclined in his seat behind the steering wheel. He saw the defendant reach down and place an aerosol canister to his mouth and spray.

Prosecutors said the difluoroethane listed on the two cans of compressed air Sosa was found with is the equivalent of ethylene fluoride. The court said that is not listed in a state law that lists proscribed substances - and that, in fact,in 1971, the legislature removed ethylene as a controlled substance - not that prosecutors proved that difluoroethane is the same as ethylene, the court said.

[A]t trial the Commonwealth offered no evidence that difluoroethane, the chemical that was contained in the canister
from which the defendant was inhaling, was the chemical equivalent of ethylene fluoride, or that either of those substances qualify as "glue" or any other prohibited substance defined in the statute. The judgment of operating under the influence of drugs is therefore reversed.

The court noted the legislature could fix this if it wanted.