Wording of new DWI bill raises concerns of a loophole

The Minnesota state Legislature is looking to broaden the state's driving while intoxicated law to include a number of new substances, like the popular household product "ultra duster" that a man sentenced this week in Wisconsin had used prior to a wrong-way crash that killed three Minnesota men last summer.

But while the goal is to prosecute drivers who get behind the wheel while intoxicated, a revision to the bill currently circulating the state Senate would require a person to "knowingly" ingest a substance. It's a move critics worry may cause problems for prosecutors hoping to hold drivers accountable.

"It just makes the law weaker, it makes it harder to prosecute and it gives defense attorneys more leverage to reduce sentences," said Clay Kendhammer, whose brother was killed in the crash last summer. Serghei Kundilovski, the other driver, was later found to have been huffing aerosol spray duster prior to the crash, a substance not currently covered by Minnesota's DWI law.

The bill's author, state Sen. Greg Clausen, DFL-Apple Valley, hopes to get the word “knowingly” taken back out. He said it was put in by other lawmakers who worried about other odd situations that could create an inadvertent intoxication.

“[They] were concerned about people working in industrial situations where there might be fumes," he said. "There might be dust that would carry some type of intoxicant.”

Clausen is weighing his options to cross the word back out of the bill’s language, including possible floor amendments. And, since the House version of the bill already does not use the “knowingly” language, another option is to make the change in conference committee.

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