No. 94 People v Vincent Litto

In January, 2004, 19-year-old Vincent Litto was driving on Gerritsen Avenue in Brookyn with
three passengers, all 13-year-old boys, when he allegedly inhaled (or "huffed") the spray from an aerosol can of "Dust-Off." About 45 seconds later, he veered across the center line and collided with an oncoming car, killing 17-year-old Kristian Roggio. Two passengers in Litto's car and two in the other vehicle were seriously injured. "Dust-Off," which is generally used to clean electronic equipment, contains a hydrocarbon propellant that has a depressive effect on the central nervous system, according to a toxicologist who testified before the grand jury.

Litto was indicted on 14 charges, including driving while intoxicated under Vehicle and Traffic
Law § 1192(3) and second degree vehicular manslaughter under Penal Law § 125.12, which requires proof the defendant violated Vehicle and Traffic Law § 1192(3). Section 1192(3) provides, "No person shall operate a motor vehicle while in an intoxicated condition," but it does not define the term "intoxicated."

Supreme Court granted Litto's motion to dismiss both charges, concluding that the meaning of
"intoxicated" within the statutory scheme "is limited to a driver's impairment by the consumption of
alcohol."

The Appellate Division, Second Department affirmed in a 3-1 decision, saying, "The history and
structure of [the statute] demonstrate that the Legislature intended it to apply only to intoxication caused by alcohol." The majority traced the evolution of the state's drunk driving laws since 1910, citing amendments enacted in 1941 to allow evidence of blood alcohol content (BAC), in 1960 to prohibit driving while "impaired by the consumption of alcohol," in 1970 to create presumptions of impairment and intoxication based on BAC levels and, "significantly," the 1966 enactment of Vehicle and Traffic Law§ 1192(4), which made it a misdemeanor to drive while "impaired by the use of a drug." "[C]ontrary to the view of our dissenting colleague," the court said, "the Legislature clearly expressed its intent that Vehicle and Traffic Law § 1192(4) was enacted to preclude operation of a motor vehicle while under the influence of drugs or narcotics. By implication, the Legislature recognized that Vehicle and Traffic Law § 1192(3) did not proscribe such conduct. For us to hold otherwise would render section 1192(4) superfluous, a result to be avoided in statutory construction...."

The dissenter said, "[A]lthough the case law discussing and applying the subdivision has frequently
involved the consumption of alcohol, such a limitation is not compelled by the plain language of the
statute, by the expressed intent of the Legislature in enacting or amending the same, or by controlling case law. Further, applying such a limitation would run contrary to the goal of the legislation to keep the roads safe from drivers who are incapable of employing the physical and mental abilities needed to operate a vehicle as a reasonable and prudent driver without regard to what substance gave rise to such an intoxicated condition."