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Pennsylvania Supreme Court Holds Defendant Acted With Malice When She Huffed Dust-Off Before Fatal Crash

A man was killed in a car crash caused by a driver who huffed 1,1-difluoroethane, or DFE, immediately before and while driving. Based on her prior history of becoming unconscious after huffing DFE, the Pennsylvania Supreme Court concluded that her conduct constituted the high level of recklessness required for a finding of malice sufficient to support her convictions of third-degree murder and aggravated assault. It therefore affirmed the superior court’s decision. This decision may be relevant to Illinois drug DUI cases in the event that the courts in this state consider a similar situation.

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The Commonwealth charged the driver with numerous offenses, including aggravated assault, aggravated assault with a deadly weapon, aggravated assault while DUI, homicide by vehicle, third-degree murder, and homicide by vehicle while DUI.

At her October 2014 jury trial, the evidence showed that the driver and her then-fiance drove to a Walmart store. They purchased two cans of Dust-Off and some other items and then returned to the car. (Dust-Off contains DFE, a colorless gas commonly used as a refrigerant or as a propellant for aerosol sprays and in gas duster products.) Before exiting the parking lot, she opened the Dust-Off, and both she and her ex-fiance huffed.

A few minutes later, she drove north on Benner Pike. While stopped at a red light, they huffed again. The driver started to drive but became unresponsive; the ex-fiance compared her to a zombie. The vehicle started to drift into oncoming traffic. The vehicle struck a sedan driven by the victim head-on. He died within minutes of the crash.

The jury convicted the driver of all of the charges except for aggravated assault with a deadly weapon. She timely appealed to the Superior Court, challenging, in relevant part, the sufficiency of the evidence to support a finding of malice to sustain her convictions of third-degree murder and aggravated assault. The court concluded the facts of the case supported a finding of malice.

The Pennsylvania Supreme Court granted the driver’s petition for allowance of appeal to review the following question:  whether the prosecution proved beyond a reasonable doubt that she acted with sufficient malice when she became involved in a fatal motor vehicle accident after she ‘huffed’ Dust-Off to support her convictions of third-degree murder and aggravated assault.

Several decades had passed since the state high court last examined whether the decision to drive under the influence of a controlled substance or alcohol can ever rise to the level of malice. Its previous holdings announced that the mens rea typically associated with the decision to drive under the influence is ordinary recklessness rather than malice.

The facts of this case, however, differed from past precedent. Here, the driver huffed DFE both immediately before and while driving on public roads. She knew from the label that Dust-Off was not meant to be ingested. She also knew, from numerous previous experiences, that DFE affected her immediately and continued to debilitate her for for 10-15 minutes following inhalation. Finally, she was well aware that huffing had caused her to lose consciousness on past occasions.

There is a serious difference, the court reasoned, between deciding to drive while intoxicated and deciding to drive with knowledge that there is a strong likelihood of losing consciousness. In the latter situation, the defendant is virtually guaranteeing an accident will occur by intentionally undertaking an unnecessary act in careless disregard of its probable harmful impact on others.

For these reasons, the court held that the evidence supported the finding that when the driver decided to drive a vehicle under the influence of DFE, she acted with the required malice to support her convictions of aggravated assault and third-degree murder. Thus, the lower court’s decision was affirmed.

This is not the first time such an issue has reached the courts. This month, the Minnesota Supreme Court reversed the impaired driving convictions of a woman who was found slumped over in her car on three occasions after allegedly huffing DFE. One justice dissented, arguing the law lists hazardous chemical characteristics, and DFE falls under that category even though it’s not mentioned by name.

Also this year, a California motorist’s 2010 gross vehicular manslaughter conviction while intoxicated on DFE was overturned on appeal. In 2015, the Montana Supreme Court held that a person can be charged with driving under the influence for huffing aerosol propellants.

If you have been charged with a DUI offense in Illinois, it is crucial to speak to an experienced Illinois DUI lawyer as soon as possible. Harvatin Law Offices, PC provides knowledgeable representation to people in Springfield and throughout Illinois. We have considerable experience defending individuals charged with DUI offenses and representing drivers with revoked licenses before the Illinois Secretary of State. To learn more, and to set up a free initial consultation, contact us online or call us toll-free at 1-800-829-8513.

More Blog Posts:

State Appeals Court Upholds Polo Mogul’s DUI Manslaughter Conviction, Illinois DUI Lawyer Blog, October 2, 2017.

Ten-Year Court Battle Culminates in Probation for Riverdale Homicide Defendant, Illinois DUI Lawyer Blog, September 1, 2017.

New Law Enables Texans to Seal DUI Records, Illinois DUI Lawyer Blog, August 1, 2017.