In a decision that seems to conflict directly with State v. Torbeck, 2012 WI App 106, 344 Wis. 2d 299, 821 N.W.2d 414, see our post here, the court of appeals holds that carburetor cleaner is an intoxicant under Wisconsin’s OWI statute, Wis. Stat. §346.63(1)(a)(2011-2012).
In 2012, Duewell was charged with 2 counts of OWI under §346.63(1)(a), which prohibits a person from operating a motor vehicle while under the influence of an “intoxicant,” a controlled substance, a controlled substance analog, or any other drug which renders the person incapable of safely driving. The statute did not define “intoxicant.” Duewell argued that it thus did not apply to him because he was driving under the influence of a carburetor cleaner, which he had huffed.
In 2013 the legislature amended the OWI statute and defined the term “intoxicant” to include “hazardous inhalants.” Duewell does not dispute that if he were charged under the 2013 version of the statute, then carburetor cleaner would qualify as an “intoxicant.” The problem is that he wasn’t charged under the 2013 statute; he was charged under the 2011-2012 version. Torbeck examined the 2011-2012 statute and held that DFE (a substance found in hairspray can) did not qualify as an intoxicant, a controlled substance, controlled substance analog or other drug because (1) the legislature had not codified DFE as an intoxicant; (2) the rule of lenity provides that ambiguous criminal statutes must be construed in favor of the defendant; (3) §346.935 entitled “intoxicants in motor vehicles” does not mention DFE and under basic rules of statutory construction omissions are intentional, and (4) driving while under the influence of an inhalant can still be prosecuted as reckless driving under §346.62(2) even if it does not qualify as an OWI. Torbeck at ¶¶8-11.
Duewell made essentially the same arguments as Torbeck but bolstered them by reference to the definition of the term “intoxicant” in other parts of Wisconsin’s OWI law and Wis JI- Criminal 2663, which clearly defines an “intoxicant” as an “alcoholic beverage.” Duewell tossed in an ex post facto challenge for good measure. The court of appeals brushed all of that aside an held “the plain meaning of the term ‘intoxicant’ includes any substance that intoxicates.” Slip op. ¶7.
Given Torbeck‘s analysis and holding, the decision here is an impressive feat of judicial activism. A footnote more or less acknowledged that the court of appeals was trying to rewrite the 2011-2012 version of the statute in order to address the legislature’s failure to define “intoxicant.” The court said: “The new definition [of intoxicant] could also be a reaction to our unpublished decision in Torbeck, in which we concluded that Difuoroethane (DFE) was not an intoxicant.” Slip op. ¶17. Weirdly, Torbeck and Duewell were both issued by the District 2 court of appeals, though by different judges.