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Massachusetts Appeals Court Reverses Conviction for Operating Under the Influence of an Aerosol Canister’s Vapors

The Massachusetts Appeals Court today reversed a Malden District Court conviction of operating under the influence of drugs.  The name of the case is Commonwealth v. Sousa.

The defendant was charged with OUI-Drugs following his arrest by a Malden police officer in September of 2011.  A bystander saw the defendant driving his car on a Malden street.  The defendant drove through a stop sign but stopped in the middle of the intersection.  The bystander walked toward the car and saw the defendant either asleep or passed out in the driver’s seat.  The defendant then sat up, placed something up to his mouth, and drove away.

The bystander called the police and continued to watch the defendant drive erratically down the street.  A police officer arrived at the scene and approached the defendant’s car, which was parked in the middle of a two-way road.  The engine was running and the defendant had reclined his driver’s seat.  The officer watched as the defendant placed an aerosol canister in his mouth and sprayed.  Following several commands from the officer, the defendant got out of his car and was arrested.  The officer seized two aerosol canisters from the car and discovered they were computer cleaners.  The officer testified that the canisters contained a substance called difluoroethane.  A judge convicted the defendant of operating under the influence of drugs and the defendant appealed.

In Massachusetts, it is against the law to operate a motor vehicle while under the influence of narcotic drugs, stimulants, or depressants, which are all defined by a statute.  While difluoroethane is not specifically listed in the banned-substance statute, the Commonwealth argued on appeal that the substance is the chemical equivalent of another substance – ethylene fluoride – which is specifically listed in the OUI-Drugs statute.  Therefore, according to the Commonwealth, the defendant was properly convicted of operating under the influence of drugs.

The Appeals Court disagreed with the Commonwealth’s argument and reversed the defendant’s conviction for OUI-Drugs.  The Court pointed out that when the language of a statute is clear and unambiguous, an appellate court cannot substitute its own opinion for what the statute ought to mean.  The Legislature’s intent is clear when a statute’s language is not open to interpretation.  In this case, difluoroethane is not defined in the OUI-Drugs statute as a banned substance.  The Court said that if the Legislature had wanted to prohibit driving while under the influence of difluoroethane, it could have done so by adding the substance to the statute.

The Commonwealth often has problems proving OUI-Drugs cases even when the facts suggest that the defendant was completely unfit to drive.  Unlike OUI-Alcohol cases, the Commonwealth usually needs to call an expert witness to testify that the defendant’s actions were consistent with having been under the influence of a specific substance.  The Commonwealth must also prove that the substance qualified under the statute to allow for the defendant to be convicted.  This element is often difficult for prosecutors to prove, as it sometimes involves complex issues involving the chemical compounds of substances.

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