N.Y. Court Rules Drunk Driving Does Not Include Using Inhalants with Alcohol

June 29, 2007

A motorist accused of “huffing” stimulants from an aerosol can before getting into a deadly wreck cannot be charged with driving while intoxicated, New York’s highest court ruled Wednesday.

The Legislature never included inhalants with alcohol and certain other drugs in the definition of intoxicated driving, the Court of Appeals ruled.

Several counts, including manslaughter and criminally negligent homicide, remain against Vincent Litto, who is charged in a 2004 crash in Brooklyn that killed a 17-year-old girl and injured others, including himself. Prosecutors allege he was driving when he sprayed a can of “Dust Off” into his mouth, and crashed into an oncoming car less than a minute later.

“If defendant did what the prosecution charges, then his conduct was reprehensible,” wrote Chief Judge Judith Kaye in the unanimous decision. “Perhaps gaps exist in the law. … However, a determination by this court that intoxication in Vehicle and Traffic Law includes the use of any substance would improperly override the legislative policy judgment.”

Neither could the driver have been charged under a 1966 law against driving while high on drugs because that law covers only “explicitly enumerated drugs,” the decision stated.

Huffing is inhaling the chemicals that are given off by glue, aerosols and other substances and can act as stimulants. It replaces oxygen in a person’s lungs and can be fatal.

The court said it would be up to the Legislature to address huffing.

“I think it’s significant in that hopefully district attorney’s offices won’t do something like this again,” said Litto’s attorney, Anthony Bramante. Litto has been free while he challenged the intoxicated driving charge.

Brooklyn Assistant District Attorney Ann Bordley did not immediately respond to requests for comment.

State Sen. Catherine Young sponsored a bill this year that would have expanded the definition of “drug” to include “inhalants and glues” in the driving while ability impaired by drugs law. It passed the GOP-led Senate in March, but didn’t get out of committee in the Democrat-led Assembly.

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