Proposed Bill Would Amend New Jersey DWI Law by Adding “Zero Tolerance” Provisions for Inhalants

By Nickersonl at en.wikipedia [Public domain], from Wikimedia CommonsA New Jersey Senate committee has approved a bill that would amend the state’s driving while intoxicated (DWI) statute to more specifically address driving while under the influence of inhalants. Supporters dubbed the bill “Kimmie’s Law,” after a teenager who died after a car accident with a driver who had allegedly “huffed” dust cleaner. While New Jersey’s DWI statute identifies specific levels of alcohol intoxication, it does not do so for other substances. Testing for inhalants is especially difficult, since the chemicals are not detectable in the bloodstream for long. The proposed bill would make it an offense to drive with any amount of an inhalant in one’s blood. “Huffing” is undoubtedly a serious health problem, particularly among young people who use it as a cheap way of getting high. Applying a “zero tolerance” approach in a criminal statute in this manner, however, presents its own problems.

New Jersey law does not currently provide a distinct definition of “inhalant.” The New Jersey Code of Criminal Justice prohibits “inhal[ing] the fumes of any toxic chemical” for the purpose of intoxication, or possessing a toxic chemical for that purpose. The DWI statute includes the word “inhalant” among a non-exclusive list of substances that can release “toxic vapors or fumes for the purpose of inducing a condition of intoxication.” Examples provided by both statutes include “any glue,” as well as chemicals found in many household cleaning products.

The accident that gave the bill its name occurred in 2007, when an 18-year-old driver veered off the road and collided with a street sign. Her 16-year-old passenger sustained fatal injuries. According to a toxicology report, the driver was under the influence of an inhalant at the time of the accident. The driver eventually pleaded guilty to recklessly causing bodily injury to a passenger. The state also charged her with vehicular homicide, but not DWI. The prosecutor in the case said that it was impossible to prove with “scientific certainty” that the driver met the statutory requirements for “intoxication.”

The bill was introduced in the New Jersey Senate as S358 in January 2014, and it was approved by the Law and Public Safety Committee on October 16. The Senate passed a previous version in the 2012-13 session, but it did not pass the Assembly. The currently pending companion bill in the Assembly, A3009, was introduced in March 2014. The current version of S358 amends the DWI statute to include all of the chemicals identified in the statute within the definition of an “inhalant.” It also states that if a person has any amount of inhalant in his or her blood, he or she will be deemed to be “under the influence” of that inhalant.

A possible problem with the bill is that a “zero tolerance” approach potentially covers both illegal and legal activity. If the inhalant detected in a person’s blood is from a doctor with a prescription, or if the person “legally possessed the inhalant and used it for its specific intended purpose according to [its] directions,” the person may raise that as an affirmative defense. With very few exceptions, the types of substances considered “inhalants” under this bill have legitimate industrial, commercial, and even household uses. Treating the presence of any amount of the substance in a person’s blood as evidence of legal intoxication could put some people, such as those who use those chemicals in the course of their jobs, in the position of having to prove a negative. Our system of requiring proof of guilt beyond a reasonable doubt is usually intended to prevent defendants from having to prove their own innocence.

If you are facing a possible DWI or other criminal charge, you should seek the help of an experienced and skilled DWI attorney. We have dedicated our entire law practice at Levow & Associates to DWI defense, and we are available 24/7 to help you. To schedule a free and confidential consultation to discuss your case, contact us online or at (877) 975-3399.

More Blog Posts:

New Jersey DWI Law Does Not Require Police to Witness Actual Driving, as Arrest of Sleeping Man for DWI Demonstrates, New Jersey DWI Attorney Blog, October 17, 2014

How Does the State Prove “Intoxication” in New Jersey DWI Cases Involving Drugs Instead of Alcohol? New Jersey DWI Attorney Blog, August 26, 2014

What Is the Current Status of the Alcotest Machine in New Jersey DWI Cases? New Jersey DWI Attorney Blog, August 23, 2014

Photo credit: By Nickersonl at en.wikipedia [Public domain], from Wikimedia Commons.