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NO OPERATION UNDER THE INFLUENCE OF DRUGS AFTER INHALING DIFLOUROETHANE FROM AEROSOL CAN

Massachusetts General Laws Chapter 90, section 24 prohibits, among other things, operating a motor vehicle on a public way while under the influence of drugs. Drugs are defined in G.L. c.94C, and include “vapors of glue.” In Com. v. Sousa, the defendant was convicted after a trial of operating while under the influence of drugs, based on testimony that a police officer observed the defendant behind the wheel, inhaling from an aerosol can and acting strangely. There was evidence that the aerosol can contained the gas diflouroethane.

On appeal, the prosecutor initially argued that the conviction was valid because the inhalant was akin to vapors of glue, but then dropped that argument, instead arguing that (1) diflouroethane is chemically equivalent to ethylene fluoride; and (2) since ethylene fluoride misuse is an arrestable offense pursuant to G.L. c. 90, §21 (the motor vehicle power of arrest statute), therefore being under the influence of diflouroethane must also be prosecutable under the OUI statute.

The Appeals Court rejected that argument, consistent with the court’s “traditional policy that we construe criminal statutes narrowly against the Commonwealth.” Similar to the Rule of Lenity, which holds that a court, in construing an ambiguous criminal statute that sets out multiple or inconsistent punishments, should resolve the ambiguity in favor of the more lenient punishment, the Appeals Court’s policy reflects a long-standing policy of giving the accused the benefit of the doubt in criminal cases.

The Appeals Court reversed the judgment and vacated the conviction of operating while under the influence of drugs.


Attorney Kevin D. Quinlan

Uxbridge, Worcester County, Massachusetts

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