Prosecutors say it's difficult to charge drivers impaired by substances not listed under Minnesota's DWI law.
Drivers high on everything from aerosol dusters to synthetic marijuana and over-the-counter cough medicines are turning up all over Minnesota roads, alarming police and prosecutors.
Because the state's DWI law refers to lists that don't specifically include those substances, law enforcement officials say it can be tough to impose serious penalties on people dazed or otherwise impaired behind the wheel and putting others at risk.
"There's a hole in the [DWI] statute right now," said Brainerd prosecutor Matt Mallie. "It needs to be dealt with quickly."
Consider the case of Maureen Elizabeth Kelly. The way Mallie sees it, she should have been facing four DWIs.
A Brainerd police officer watched as Kelly sat parked behind her steering wheel, inhaling spray from an aerosol can of computer duster, getting high. When the officer approached, Kelly was confused, court papers say. She couldn't stand up on her own. Couldn't keep her balance. Couldn't follow instructions. He arrested her.
It was the fourth time in four months and could have added up to a felony-level DWI last year. But because the chemical in the cleaner she was huffing is not on lists of substances under the state's DWI law, prosecutors say, the 43-year-old Brainerd woman, who couldn't be reached for comment, ended up with four misdemeanor convictions of reckless driving instead.
Citing cases like that, some prosecutors are calling on lawmakers to make it illegal to drive impaired on any substance.
Bill Lemons, of the Minnesota County Attorneys Association, said the big problem is that the law is tied to substance lists that are quickly outdated.
Drivers "could be passing out, falling down and it doesn't matter," Lemons said, "because whatever they're using isn't listed."
Drug-only DWIs rise
Across the state, more police officers are getting trained every year to spot drivers impaired on substances other than alcohol. DWIs involving only drug use have risen dramatically in Minnesota, from four in 1991 to more than 700 in 2009.
Sometimes police suspect drug-impaired drivers know about the law's loophole.
In Duluth, a weaving driver slowed and stopped for no apparent reason in July, officials said. When police stopped him, he failed field sobriety tests but didn't smell like alcohol.
"This driver admitted to me that he was smoking 'legal incense,'" police investigator Ryan Morris said. "That's how he put it to me."
Police learned the substance was a synthetic marijuana that has since been banned in Duluth and some states, but isn't yet on a federal list of controlled substances referenced in Minnesota's DWI statute.
State law says it's a crime to operate a motor vehicle under the influence of alcohol, a "controlled substance" or a "hazardous substance." Controlled substances are specified on a federal Drug Enforcement Administration list and hazardous substances are specified on a state Occupational Safety and Health list, compiled for worker safety.
Duluth prosecutors said they expect to charge the man next week with misdemeanor careless driving.
Morris said he's afraid the man and others could do it -- and get away with it -- again.
"They could be a danger to any one of us, our families," Morris said. He added later: "We're playing with fire up until the point when we can actually get this clearly defined in the statute."
Past efforts failed
Police and prosecutors said they don't know how many potential DWI cases are getting sidetracked in Minnesota.
Efforts to broaden the law haven't worked in the past. Former state Sen. Wes Skoglund, DFL-Minneapolis, sponsored a bill in the mid-1990s, but some lawmakers were concerned about people working with their doctors to figure out the correct dosage of prescription drugs, he said.
"Almost everybody has taken a pill and almost everybody knows somebody where the pill didn't work right for them. It made them dizzy, it made them nauseated, something ... It's not fair to charge those people," Skoglund said.
But Lemons said, if someone is dangerously impaired on a prescription, "do we really want them driving?"
He and other prosecutors point to states that already have broader language.
In Wisconsin, for instance, it's illegal to drive under the influence of an intoxicant, controlled substance or "any other drug to a degree which renders him or her incapable of safely driving." In Iowa, state law prohibits driving under the influence of alcohol or other drugs. There, a state Supreme Court ruling interpreted "drug" broadly, officials said.
Cleaner not listed
Minnesota's law is worded differently. Based on his reading of it, Judge Jonathan Jasper in Wright County indicated in May that he would throw out an impaired driving-related charge against a Monticello man who had huffed aerosol computer cleaner.
Justin D. Zelenak was 18 years old when he swerved his car through a lane of oncoming traffic and crashed into an electrical generator in July 2009. Authorities found cans of the cleaner in the car and Zelenak told police he had huffed shortly before the crash, a police report said. Zelenak claimed he wasn't high, but drove off the road while reaching for his cell phone.
The aerosol chemical difluoroethane was also found in Zelenak's blood, though Zelenak did not show signs of impairment when police arrived, documents say. The aerosol gives a fast and fleeting high.
Just before Zelenak's case was scheduled to go to trial in May, his defense attorney argued that a DWI charge couldn't stand under state law. The judge agreed.
Jasper said in court that he "would inevitably have to dismiss that charge, because there's no evidence that it is a hazardous substance as it's defined by statute."
So attorneys negotiated and Zelenak pleaded guilty to careless driving instead. Jasper said Zelenak was "catching a huge break." He sentenced Zelenak to a year of probation.
Zelenak said in an interview that he hasn't huffed since.
"Thank God I didn't hurt anybody," he said. "It's clearly not worth it any way, shape or form. It's just not."
The Wright County case and other talk among state prosecutors has led some to reconsider charges.
In Dakota County, prosecutors said they will call back an aerosol huffing case in which a driver pleaded guilty in May to intoxication-related criminal vehicular operation.
"Since then, we learned about this glitch in the statute," Dakota County Chief Deputy Attorney Phillip Prokopowicz said. "We're going to reinstitute [an] underlying charge of gross negligence," also in the criminal vehicular operation statute.
Testing levels tough
Even if legislators rewrite the law, it won't make every case a slam-dunk.
Testing blood or urine for some drugs and determining impairment levels can be tricky, experts say.
It's an issue many states are grappling with as abuse of medicines is on the rise. Nationally, substance abuse treatment admissions involving prescription narcotic pain relievers increased 400 percent from 1998 to 2008, according to the Substance Abuse and Mental Health Services Administration. And a study two years ago found 3.1 million people ages 12 to 25 had used over-the-counter cough and cold medicines to get high -- more than the number admitting to trying methamphetamine.
A Chaska woman says she didn't think she was impaired on over-the-counter cough medicine that she had taken the day before she rear-ended a car two years ago.
The woman, who isn't being named because she was a juvenile at the time, showed signs of impairment, according to a police report.
The driver she rear-ended, 54-year-old Renee Taylor, of Victoria, said it appeared the girl didn't know she had hit someone.
According to the report, the girl told police that the day before she had taken a total of 36 Coricidin pills -- a number she disputed in a recent interview.
Officers arrested her for driving while impaired.
The girl "was clearly impaired by Coricidin-DXM while she was driving," the officer wrote. "However, this substance is not recognized to support a DWI charge in the case."
She was instead cited with inattentive driving.
Now sober for two years, the driver said she thinks people who are impaired on cough medicines should be charged with DWI. "It messed up my body a whole bunch," she said.
Taylor suffered no permanent injuries, but said it frightens her to think about what could have happened.
"It might not have been an illegal drug," she said. "But it did just as much damage."
Pam Louwagie • 612-673-7102