New York v. Litto: Can You Get a DUI from Huffing Under New York Law?

The case of People of the State of New York v. Vincent Litto is about operating while intoxicated by huffing chemicals. The Defense in this case argued that New York law did not prohibit driving under the influence of a huffing chemical inhalant. The Defense was successful on these grounds, as New York law did not prohibit driving under the influence of such chemicals.

What Happened in the Case

In Brooklyn, Litto, the defendant, was huffing from a Dust-Off can while driving. Litto was driving 20 miles per hour over the speed limit and veered into oncoming traffic, hitting a car head on and killing a passenger.

What is Difluoroethane from Dust-Off?

Dust-Off is an aerosol which contains the chemical  difluoroethane.  Difluoroethane provides a high to those who huff the chemical. The high is similar to alcohol intoxication and can be powerful and disabling to a driver.

A forensic expert testified about difluorethane at the grand jury hearing. The expert testified that the high from huffing difluorethane acts as an initial stimulant before operating as a central nervous system depressant. The high from this chemical makes it difficult for users to perceive and interact with their environment.

What Happened Legally Speaking

Litto’s case was taken to the grand jury. The prosecutor obtained indictments for counts of manslaughter in the second-degree, reckless endangerment in the second degree, operating a motor vehicle in an intoxicated condition, and five counts of assault.

Litto’s criminal defense attorney filed a motion to dismiss regarding the counts related to operating under the influence. The attorney argued that New York law did not specifically prohibit driving under the influence of this inhalant chemical and the operating while intoxicated provision applied to alcohol, not drugs.

The Court’s Decision

The Court agreed with the defense that Litto could not be prosecuted under a theory involving an operating while intoxicated (DUI-type) law.

First, New York’s law prohibiting operating while intoxicated by drugs did not cover inhalant type chemicals as the one here. New York’s OWI law regarding drugs lists the specific types of drugs a person may not drive under the influence of. There is a long list of drugs contained in the law. However, difluorethane is not listed among those types of drugs. Therefore, a person cannot be prosecuted under that section.

Without the benefit of that type of law to prosecute, the Prosecutor argued that Litto could be prosecuted under the law that prohibited a driver from driving under an intoxicated condition.

The Court disagreed with this argument. The Court ruled that the law, which specifically states “Driving while intoxicated.¬† No person shall operate a motor vehicle while in an intoxicated condition,” only applies to alcohol, and not drugs. To reach this conclusion, the Court analyzed the legislative history regarding the enactment of the law.

The Court focused on the word “intoxication” in the statute. In many cases, Courts are focused on defining words in statutes to divine the meaning of the legislature who created the law.

What is “Intoxication” Under New York Law

The Court researched the definition of the word “intoxication” in the legal sense, and determined the word as used related to alcohol. Black’s Law Dictionary is one major source of legal definitions. Black’s defined intoxication as limited to the effects of alcohol. Later legal dictionaries also limited the definition of intoxication to alcohol. There was a long lineage in the definition of the word to conclude the legislature when creating this specific law referred to alcohol and not drugs.

Ultimately, the Court concluded that intoxication as used by the people who created this particular law intended for the word to relate to a state of drunkenness from alcohol, and not the effects of drugs.

The Court’s Ruling

The Court affirmed the lower court’s dismissal of the charges related to operating while intoxicated by huffing. However, the prosecution could still go forward under other criminal law theories. Litto would not relieve himself of all criminal prosecution in this case through this appeal. However, he was able to knock off some off the case against him.

Huffing and Intoxication

Of course, a person can be intoxicated from huffing in a normal non-legal sense. It’s just that this particular law was about alcohol and not drugs.

Huffing produces a very serious high for users. However, state governments that create DUI laws did not take into account huffing chemicals when creating the laws. Many states DUI laws did not contain provisions related to huffing. For example, read this Wisconsin case involving a DUI charge of huffing in which the driver could not be convicted because Wisconsin law did not cover inhalant chemicals under its DUI laws. The Court in this New York case cited this as a gap in the law – the gap being the inability to prosecute drivers high from inhalant chemicals under its DUI laws.

Chemicals such as difluorethane did not make the lists in many statutes of traditional drugs such as heroin or cocaine. Many states have taken action to close the gap in the law. For example, in Michigan, a person could be convicted of operating while intoxicated by an “intoxicating substance.” An intoxicating substance can be a fill in the blank of any substance that could theoretically produce a high.

DUI laws are ever involving. The trend is to make such laws more and more expansive so that it covers as much potential driving under the influence behavior as possible.

Call us

Call Sam Bernstein at 734-883-9584 or e-mail at

Sam Bernstein is a Criminal Defense Attorney in Ann Arbor and Ypsilanti.

ArborYpsi Law is located at 4158 Washtenaw Ave., Ann Arbor, MI 48108.

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ArborYpsi Law focuses on DUI Laws

Here at AYL we are always staying on top of the law and trends. We have written many articles on DUIs and inhalants, which you can read in our Collection of Inhalant Law Articles. The trend to include huffing chemicals under DUI laws is one trend that we have followed over time. Another trend AYL stays on top of is the intersection of DUI laws and technology. Under the Read More section above you can find some articles related to emerging technologies and DUI laws. Read our DUI/DWI/OWI blog for complete coverage on these issues. Feel free to call for more information.

Have you been charged with operating while intoxicated or a related crime? Call us for a free initial consultation. Never just walk in and plead guilty. Speak with an attorney who is experienced in criminal defense and DUI laws first.

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