State v. Marilyn M. Torbeck, 2012AP522-CR, District 2, 8/1/12
court of appeals decision (1-judge, ineligible for publication); case activity
¶6 … For the State to charge Torbeck with OWI under § 346.63(1)(a), DFE must be either an intoxicant, a controlled substance, a controlled substance analog, or a drug. DFE is not listed as a controlled substance under either Wisconsin or federal law. A “controlled substance analog” is defined as “a substance the chemical structure of which is substantially similar to the chemical structure of a controlled substance.” Wis. Stat. § 961.01(4m)(a). The State presented no evidence that DFE is “substantially similar” in chemical structure to a controlled substance. For purposes of the OWI law, “drug” is defined [in] § 450.01(10). A search for DFE on the “U.S. Pharmacopeial Convention” website (http://www.usp.org/) did not yield any results. DFE is thus not a “drug” under Wisconsin law. As DFE is not a controlled substance, controlled substance analog, or drug, the State may only charge Torbeck with OWI if DFE is an “intoxicant.”
¶7 “Intoxicant” is not defined within the OWI statute. The State urges that we adopt a plain meaning definition by relying on Merriam-Webster’s dictionary, which defines “intoxicant” as “something that intoxicates,” and “intoxicate” as “to excite or stupefy by alcohol or drug especially to the point where physical and mental control is markedly diminished.” Merriam-Webster Online, http://www.merriam-webster.com/dictionary/intoxicant & http://www.merriam-webster.com/dictionary/intoxicate (last visited July 12, 2012). According to the State, DFE “is a substance that causes euphoria and diminished motor control” and thus should be considered an intoxicant. Torbeck responds that even using the State’s dictionary definition, DFE is not an “intoxicant.” As “intoxicate” means to “excite or stupefy by alcohol or drug,” and as DFE is neither alcohol nor a drug, DFE cannot be an intoxicant.
¶8 We agree with Torbeck that the legislature has not codified DFE as an “intoxicant” within the OWI statute and thus affirm the dismissal of the OWI charge. …
The court’s conclusion is reinforced by the fact that reckless driving, such as that exhibited in this case, is subject to separate punishment, on a scale very similar to that for OWI; and by canons of statutory construction (lenity: ambiguity should be resolved in favor of the defendant; and, express inclusion of one thing implies exclusion of another: express inclusion of inhalation of nitrous oxide in the OWI scheme implies exclusion for inhaling DFE), ¶¶9-11.