The Incident

On April 15, 2018, our client crashed into a parked car after inhaling Industrial Strength Ultra Duster. An officer from the Aurora Police Department received the dispatch call at approximately 1:15 p.m. Upon arriving at the scene, the officer woke up our client who was still sleeping inside his Subaru Legacy. Our client confessed on body cam video that he was “blasted out of his mind,” and showed the officer the two cans of Industrial Strength Ultra Duster that were lying on the passenger compartment floor.

The Case

The officer charged our client with reckless driving, reckless endangerment, and abusing toxic vapors in violation of §18-18-412 C.R.S. During the arraignment, the prosecution filed a motion to add count six Driving Under the Influence of Drugs in violation of §42-4-1301 C.R.S., which states “A person who drives a motor vehicle . . . under the influence . . . of one or more drugs, commits . . . driving under the influence.”

Attorney Fife filed a motion in limine to dismiss count four: Abusing Toxic Vapors in violation of §18-18-412 and count six: Driving Under the Influence (DUID) in violation of §42-4-1301. Judge Stokes dismissed the count four: Abusing Toxic Vapors on the grounds that Industrial Strength Ultra Duster contains difluoroethane, which is not listed as an illegal “toxic vapor” under §18-18-412. However, Judge stokes denied the motion to dismiss the DUID after the prosecution argued that Industrial Strength Ultra Duster is still considered an “aerosol.”

The Defense

Attorney Fife is a passionate criminal defense lawyer who is prepared to aggressively litigate on behalf of his clients. He doesn’t hesitate to do everything in his power to secure a positive case outcome, and this case isn’t an exception. Attorney Fife immediately began investigating the product and utilized scientific research to determine that Industrial Strength Ultra Duster is NOT an “aerosol” because it contains no fine solid particles or liquid droplets.

On October 25, 2018, he filed an amended motion in limine based on this research. In the amended motion in limine, Attorney Fife states, “Colorado General Assembly omitted difluoroethane gas from the law forbidding the inhalation of glue, aerosol or other toxic vapors as defined in §18-18-412, C.R.S. Furthermore, the Colorado General Assembly limited its prohibitions on canned air to ‘aerosols.’ As previously confessed by the prosecution, Ultra-Duster is not a toxic vapor as defined in §18-18-412, C.R.S. It is not glue. And Ultra-Duster is not an ‘aerosol.’”

To prove his point, Attorney Fife contacted Dr. Anuj Chauhan, the Chemical and Biological Engineering Department Head at Colorado School of Mines and asked him to testify in court. Dr. Chauhan testified that aerosol is the suspension of fine solid or liquid particles in the air or another gas. Since Industrial Strength Ultra Duster does not contain any particulates and is strictly a gas used to clean computer components, it does NOT meet the scientific definition of an “aerosol.” Judge Stokes reversed her ruling and dismissed the added count of driving under the influence of drugs. Thanks to the efforts of Attorney Fife and Fife Luneau, P.C., our client was not charged with a third DUID.

According to Attorney Fife, “I expect the General Assembly will – at the very least – add difluoroethane to the list of prohibited toxic vapors. Until then, inhaling Industrial Strength Ultra Duster is neither a prohibited toxic vapor nor is it illegal to drive a motor vehicle in the State of Colorado while ‘blasted out of your mind’ from inhaling Industrial Strength Ultra Duster.”

Retain Trial-Tested & Resourceful Legal Representation

A DUID conviction can result in expensive fines, jail times, and other administrative penalties. If you’re facing charges for a drug-related DUI, contact the Denver DUI attorneys at Fife Luneau, P.C. today. Our legal team has over 30 years of collective legal experience and a comprehensive understanding of state and federal laws. By utilizing the full extent of our vast resources, we can help you secure a positive case outcome that reflects your legal objectives and protects your legal rights.

Arrested for a DUI? Don’t plead guilty! Contact Fife Luneau, P.C. at (720) 408-7130 to schedule a free and confidential consultation.