A Survey of State Laws Against Glue Sniffing and Driving Under the Influence of Glue

After writing yesterday's post on this story about a man arrested in Cedar Rapids, Iowa for allegedly driving while sniffing fumes from an aerosol can, I decided to do a little more research into glue sniffing laws in other states. As I noted in yesterday's post, Cedar Rapids' ordinance does not apply to any substances other than glue or cement, so any non-adhesive, aerosolized substances that people may inhale to get high are not covered by the ordinance. Additionally, I was unable to find any provisions in Iowa law regarding driving under the influence (operating while intoxicated) that clearly applied to driving while under the influence of inhaled glue or other aerosolized substances.

Cedar Rapids' ordinance banning glue sniffing states:

62.29 - GLUE SNIFFING.

(a) As used in this section the term model glue shall mean any glue or cement containing toluene, acetone, or other solvent or chemical having the property of releasing toxic vapors.   

(b) No person shall, for the purpose of causing a condition of intoxication, euphoria, excitement, exhilaration, stupefaction, or dulling of the senses or nervous system, smell or inhale the fumes from any model glue; provided, however, that this section shall not apply to the inhalation of any anesthesia for medical or dental purposes.                           

(c) No person shall possess, buy, sell, transfer possession, or receive possession of any model glue for the illegal purposes set forth in subsection (b) hereof.

While I concluded that Cedar Rapids' ordinance did not apply to the conduct described in the article, there are other, more expansive, state laws on glue sniffing that Cedar Rapids may want to imitate if it wants to broadly ban the huffing of fumes from glues and aerosols.

Tennessee and Indiana both have laws that outlaw not only the sniffing of glue, but of other substances as well. The relevant subsection of Tennessee's law, for example, states:

40-6-391(a)  No person shall, for the purpose of causing a condition of intoxication, inebriation, elation, dizziness, excitement, stupefaction, paralysis, or the dulling of the brain or nervous system, or disturbing or distorting of the audio or visual processes, intentionally smell or inhale the fumes from any glue, paint, gasoline, aerosol, chlorofluorocarbon gas or other substance containing a solvent having the property of releasing toxic vapors or fumes; provided, that nothing in this section shall be interpreted as applying to the inhalation of any anesthesia for medical or dental purposes, or to the use of nitrous oxide to implement the distribution of beverages or other foodstuffs for commercial purposes.

Unlike the Cedar Rapids ordinance, Tennessee's law lists a number of substances other than glue, including "aerosol." Another wider-reaching law on glue sniffing can be found in Indiana:

IC 35-46-6-1: "Model glue" defined

Sec. 1. As used in this chapter, "model glue" means a glue or cement containing toluene or acetone, or both.

IC 35-46-6-2: Inhaling toxic vapors

Sec. 2. A person who, with intent to cause a condition of intoxication, euphoria, excitement, exhilaration, stupefaction, or dulling of the senses, ingests or inhales the fumes of:

 (1) model glue; or

(2) a substance that contains:

            (A) toluene;

            (B) acetone;

            (C) benzene;

            (D) N-butyl nitrite;

            (E) any aliphatic nitrite, unless prescribed by a physician;

            (F) butane;

            (G) amyl butrate;

            (H) isobutyl nitrate;

            (I) freon;

            (J) chlorinated hydrocarbons;

            (K) methylene chloride;

            (L) hexane;

            (M) ether;

            (N) chloroform; or

            (O) halothane; or

(3) any other chemical having the property of releasing toxic vapors;

commits inhaling toxic vapors, a Class B misdemeanor.

Indiana's law is interesting because the stand-alone provisions regarding model glue are entirely unnecessary, as the "Inhaling Toxic Vapors" section applies not only to model glue, but also to "a substance that contains" toluene or acetone -- which includes "model glue," defined as a "glue or cement" that contains those chemicals.

 

What about driving under the influence of glue? For that, we go to the relevant sections of the law banning driving under the influence in Georgia:

O.C.G.A. 40-6-391 (2010)

40-6-391. Driving under the influence of alcohol, drugs, or other intoxicating substances; penalties; publication of notice of conviction for persons convicted for second time; endangering a child  

(a) A person shall not drive or be in actual physical control of any moving vehicle while: 

(1) Under the influence of alcohol to the extent that it is less safe for the person to drive;

(2) Under the influence of any drug to the extent that it is less safe for the person to drive;

(3) Under the intentional influence of any glue, aerosol, or other toxic vapor to the extent that it is less safe for the person to drive;

(4) Under the combined influence of any two or more of the substances specified in paragraphs (1) through (3) of this subsection to the extent that it is less safe for the person to drive;

(emphasis added)

 

Massachusetts also bans driving while under the influence of "the vapors of glue," although the law and applicable jury instructions do not provide a definition for the term.

 

If you were curious about various laws across the country after reading yesterday's post on glue sniffing, this post has hopefully been of some help to you. Additionally, all of this should make for excellent party conversation, so go forth and educate your friends on our nation's various laws prohibiting the inhalation of glue fumes, aerosols, and other chemicals.

 

[Author's note: while I have not yet submitted this post to the legal journals, let alone received any offers of publication, I do not think it presumptuous or premature to state that this post is almost-certainly forthcoming in a prestigious law review. Congratulations to you, dear reader, on seeing it here first.]

READ MORE - A Survey of State Laws Against Glue Sniffing and Driving Under the Influence of Glue

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Driving Under the Influence of Glue?

I like to check in on what's happening in my old home state of Iowa, and in doing so today I was drawn to this KCRG story on an (allegedly) very stupid and irresponsible driver:

A Cedar Rapids man was charged with Driving Left of Center and Glue Sniffing.

An officer was traveling westbound in the 4500 block of 1st Avenue East around 5 p.m. on August 29 when they saw a car driven by James Knight, 58, traveling in the left lane veer into the right lane.

The car crossed the dotted line and the driver corrected it, but then crossed the solid yellow line dividing the westbound lanes with the center turn lane.

The officer saw the driver holding a canister and suspected Knight may be huffing. He followed the car and when it stopped, the officer got out of his squad car and approached Knight's car.

The driver appeared to be passed out or had blacked out. When the officer knocked on the window, the driver appeared startled and the car began to roll forward.

The officer told the driver to put the car in park but the driver didn’t seem to understand and appeared to be in some intoxicated state.

The vehicle rolled forward and hit another parked car.

The officer was able to put the car in park. Knight was holding an aerosol can and denied huffing the gases out of the can.

When the story's headline contains "glue sniffing," it's difficult not to click.

Knight's reported behavior is more dangerous than driving over the center line, so it is understandable that the authorities wanted to charge him with something more than simply driving over the center line. Knight probably cannot be charged with driving under the influence (or operating while under the influence, to use Iowa's language) as this statute (Iowa Code 321J.2) is limited to those under the influence of alcohol or drugs. "Drug," is conveniently undefined under Iowa's OWI laws. Unless there is an extremely expansive definition of "drug" elsewhere in the Iowa Code that applies, the language of the OWI statute appears to foreclose charging Knight with this offense, which is most likely why Knight was not charged with OWI.

But does Knight's conduct constitute "glue sniffing?"

To answer this, we need the text of the Cedar Rapids City Ordinance that bans glue sniffing. You can find it here, and the complete text of the ordinance is as follows:

62.29 - GLUE SNIFFING.

(a) As used in this section the term model glue shall mean any glue or cement containing toluene, acetone, or other solvent or chemical having the property of releasing toxic vapors.   

(b) No person shall, for the purpose of causing a condition of intoxication, euphoria, excitement, exhilaration, stupefaction, or dulling of the senses or nervous system, smell or inhale the fumes from any model glue; provided, however, that this section shall not apply to the inhalation of any anesthesia for medical or dental purposes.                           

(c) No person shall possess, buy, sell, transfer possession, or receive possession of any model glue for the illegal purposes set forth in subsection (b) hereof.

Knight was reportedly in possession of an "aerosol can," and was presumably suspected of huffing gasses out of the can. People can get high from huffing or sniffing fumes from aerosol cans, as noted by the National Institute on Drug Abuse. But while the end result of sniffing these fumes may be similar to the result of sniffing glue, King's alleged conduct does not appear to fall under the scope of the glue sniffing ordinance.

Based on the language of the ordinance, it does not seem to apply to instances where a person sniffs fumes from an aerosol can to get high. The ordinance defines "model glue" as "any glue or cement containing toluene, acetone, or other solvent or chemical having the property of releasing toxic vapors." This definition is irritating, since it essentially uses the word "glue" to define "glue." While a number of chemicals are named, and while the catch-all at the end of the definition includes other toxic vapors, these chemicals are restricted to chemicals contained in "glue or cement." While I am not an expert on what is going on inside of an aerosol can, Wikipedia informs me that the cans contain small particles or liquids that are dispersed with a propellant, which creates the pressure that forces the particles/liquid out of the can as a spray. This sounds like quite the opposite of glue or cement, which have high viscosity.

It's possible one might attempt to apply the "or other solvent or chemical having the property of releasing toxic vapors" portion of the model glue definition to an aerosol can. But this reading is not correct, since this catch-all provision is part of a list that modifies the terms "glue" or "cement." The most subtle revision to the statute that could support such an interpretation would be to separate the named chemicals from the catch-all -- for example: "the term model glue shall mean any glue or cement containing toluene or acetone, or other solvent or chemical having the property of releasing toxic vapors." If this is what the ordinance said, Knight's conduct could potentially fall under it. As written, however, sniffing or huffing from an aerosol can does not fall under the language of Cedar Rapids' glue-sniffing ordinance.

[UPDATE - 8/30/2017]

A friend surprised me with a sudden outpouring of his proclaimed knowledge and enthusiasm for glue and its diverse potential forms. He informed me that glue does not necessarily have high viscosity, and that rubber cement, for example, could become fluid enough to be aerosolized if enough of a solvent were added to it. Indeed, here is a "Multipurpose Adhesive Aerosol" that I found with some quick Googling! I suppose that the law could be interpreted to apply to aerosolized adhesives, as glue can be defined by its function of binding objects together, although it most commonly refers to a substance that absorbs water and becomes a viscous solution with strong adhesive properties. Perhaps the courts will one day address these pressing questions regarding the true definition of glue.

Of course, it is doubtful that Knight was sniffing aeresolized glue, unless he somehow even less intelligent than initially thought. Such a practice would carry the risk of gluing his nose shut while attempting to get high, an outcome that would not only be inconvenient and painful, but that would also prevent Knight from continuing to sniff the aerosol. I suspect that if Knight indeed was using an aeresolized substance to get high, it was likely a substance other than the aeresolized adhesive that I linked to above.

READ MORE - Driving Under the Influence of Glue?

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The Arpaio Pardon: Awful, But Not Unconstitutional

"Pardoning Joe Arpaio Would Be a Constitutional Crisis" proclaims the headline of this article by Bob Bauer in Foreign Policy. The text of the article is less extreme, with no mention or definition of a constitutional "crisis." Yet Bauer's argument is in line with most of the criticism published in the last week arguing that President Trump's recent pardon of Sheriff Joe Arpaio would likely support a case for impeachment against Trump. Bauer writes:

[W]hile the president may well get away with the specific act of pardoning Arpaio, this action will not be without effect on future calls for impeachment. Unlike a pardon of himself, family members, or aides in the Russia matter, pardoning Arpaio would probably not result in the immediate demand for an impeachment inquiry. If, however, impeachment pressure increases, or a formal impeachment inquiry is launched on the basis of Russian “collusion,” obstruction, or on other grounds, an Arpaio pardon in the background will be highly damaging to the President’s position. It will immeasurably strengthen the hand of those arguing that Donald Trump does not have the requisite respect for the rule of law, or an understanding of the meaning of his constitutional oath, to be entrusted with the presidency.

(Bauer's article was published on August 25, 2017, prior to Trump's pardon of Arpaio). In the August 24, 2017 edition of the New York Times, Martin Redish argues that Trump's pardon of Arpaio would be unconstitutional because it violates the due process clause of the Fifth Amendment -- a theory that Redish admits is "novel" and unsupported by any Supreme Court opinions.

Other commentators call for Trump's impeachment as a result of the pardon. Noah Feldman claims that Trump's pardon of Arpaio is "so exceptional -- and so bad" because it involves the charge of criminal contempt of court. Explaining the background for Arpaio's conviction, Feldman writes:

Specifically, Arpaio was convicted this July by Judge Susan Bolton of willfully and intentionally violating an order issued to him in 2011 by a different federal judge, G. Murray Snow.

The order arose out of a civil suit against Arpaio brought by the American Civil Liberties Union, accusing him of violating the law by detaining undocumented immigrants simply for lacking legal status.

Snow issued a preliminary injunction that ordered Arpaio to stop running so-called saturation patrols -- police sweeps that essentially stopped people who looked Latino and detained those who were deemed undocumented. The basic idea was that the profiling, warrantless stops and detention were unconstitutional.

Yet despite the federal court’s order, Arpaio kept running the unlawful patrols for at least 18 months, and publicly acknowledged as much.

Arpaio was subsequently convicted of criminal contempt of court as a result. Feldman argues that Trump's pardon of Arpaio reflects "express presidential contempt for the Constitution," and "undermine[s] the rule of law itself" because it effectively pardons the willing violation of constitutional rights. Feldman's critique grows more abstract, as he argues that a pardon would "threaten the very structure on which [Trump's] right to pardon is based," and that "the president is breaking the basic structure of the legal order" by blocking the authority of the courts to tell law enforcement what the law is. Frank Bowman advances a similarly-toned argument, lamenting that the pardon is an impeachable offense because it is "a direct attack on the constitutional powers of the judiciary as a coordinate branch of government."

While I agree with these commentators that Trump's pardon of Arpaio is a bad thing, I am less inclined to argue that it undermines the "rule of law" or that it creates any constitutional crisis. I certainly do not think that it violates the Constitution.

On the constitutionality front, Ex Parte Grossman is a difficult obstacle for any would-be claim of unconstitutionality. There, the Supreme Court upheld a pardon of a conviction for criminal contempt of court, noting that the hypothetical impact of abusive pardoning of criminal contempt does not warrant "reading criminal contempts out of the pardon clause." Considering the hypothetical of even broader abuse, the Court noted:

If it be said that the President, by successive pardons of constantly recurring contempts in particular litigation, might deprive a court of power to enforce its orders in a recalcitrant neighborhood, it is enough to observe that such a course is so improbable as to furnish but little basis for argument. Exceptional cases like this, if to be imagined at all, would suggest a resort to impeachment rather than to a narrow and strained construction of the general powers of the President.

It is important to consider Grossman's broader lesson, particularly for critics like Bowman who argue that Trump's pardon is an attack on the constitutional powers of the judiciary. Any pardon undoes a judicial ruling -- it is a direct check that the executive branch of government has on the judiciary. Trump, in pardoning a conviction of criminal contempt stemming from constitutional rights violations, has simply laid out this conflict in what may be its rawest possible form. While it is "emphatically the province and duty of the judicial department to say what the law is," the Constitution explicitly grants the President the ability to override whatever the courts might say, and does not place any procedural constraints on the pardon power (such as a requirement that the Department of Justice review a petition for a pardon) or restrict the power to instances that are apolitical. Accordingly, Trump's pardon is an instance where the executive's check on the judiciary is extremely apparent, but this does not warrant cries of a "constitutional crisis" or a threat to "the very structure on which the right to pardon is based."

That being said, I believe that Trump's pardon of Arpaio is a disturbing endorsement of race-based enforcement of laws, and helps out a former Sheriff who has done many, many terrible things. And critics should still point out all of the problems with Trump's pardon, and should emphasize that Trump has just endorsed a brutal and senseless approach to law enforcement.

And you may notice that my argument above does not dismiss the possibility of impeachment. I don't. And I won't. Because as the too-often ignored case of Nixon v. United States tells us, the basis for impeachment is a political question, meaning that impeachment effectively means whatever Congress decides, and the courts will not review or challenge the determination. Interestingly, the Court would likely say the same of any challenge to Trump's use of the pardon power. Trump can pardon whatever the heck he wants, but on the flip side, he can be impeached for whatever the heck Congress wants.

At base, this system may seem imprecise and the implications of pardons and impeachments may be profound. But it is ultimately how the system was designed. Trump's recent pardon is not a crisis, but is instead an example of the system in operation, albeit an operation performed for an awful reason. It is not a system that is in crisis.

READ MORE - The Arpaio Pardon: Awful, But Not Unconstitutional

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