Can Nitrous Oxide be the Cause of a DUI Manslaughter Charge?

July 31, 2022 Don Pumphrey, Jr. Criminal Defense, Drunk Driving/DUI Social Share

You may have heard of nitrous oxide before—also referred to as laughing gas, nitro, nangs, hippy crack, or “whippits.” When used for medical purposes, it can be safely used to provide sedation, anesthesia, or pain management. However, it is easy to abuse, and has started to become a popular recreational drug.

There are Florida laws to prevent the possession and distribution of nitrous oxide. However, the gas itself can easily leave an individual’s body in just minutes. This makes it difficult to provide evidence for a criminal conviction. We will provide information on nitrous oxide, compare DUI manslaughter to vehicular manslaughter, and provide a recent example case from Florida.

What is Nitrous Oxide?

Nitrous oxide has been used as an anesthetic—pain relieving drug—since the 18^th century among medical and dental professionals. However, it has recently been gaining popularity as a recreational drug referred to as “whippits,” which is often sold in a whipped cream canister and transferred to another container, such as a balloon. After inhaling the gas from the balloon, the user feels a temporary “high.”

Nitrous oxide is said to give off a feeling of giddiness and euphoria, however, it only lasts for a few minutes and there are plenty of dangers from using the nitrous. Short-term effects from inhaling nitrous oxide include:

• Nausea
• Headaches
• Heart Failure
• Seizure
• Choking
• Frost burn

Using nitrous oxide can make you dizzy and confused, and it can cause you to suddenly pass out. Someone inhaling nitrous oxide can lose their sense of inhibition and act recklessly or dangerously. Inhaling too much nitrous oxide can result in cutting off the oxygen in your body and brain. This could lead to losing consciousness, going into a coma, or even death.

Many people assume that whippets are harmless since it is often sold at smoke shops, festivals, and other public events. However, it can still be illegal in the state of Florida. Under Florida Statute Section 877.111(4), any person who knowingly distributes, sells, purchases, transfers, or possesses over 16 grams of nitrous oxide can be charged with a third-degree felony. This is punishable with up to a $5,000 fine and up to 5 years in prison. The exception to this law is if the defendant had possession of nitrous oxide for the care and treatment of a disease or injury ordered by a licensed practitioner.

DUI Manslaughter vs Vehicular Manslaughter

When there is a car wreck that results in the death of another person, the two charges it can fall under are DUI manslaughter and vehicular manslaughter. Although they appear similar, the biggest difference between the two charges is that DUI manslaughter involves one of the drivers being intoxicated.

Florida Statute Section 316.193(3) defines DUI manslaughter as when the driver of a vehicle has the intoxication level of a DUI and causes a wreck that results in the death of another person or unborn baby. DUI manslaughter is considered a second-degree felony in Florida and is punishable with up to a $10,000 fine and up to 15 years in prison. If the driver does not provide aid or their personal information after the wreck and flees the scene, the charge is upgraded to a first-degree felony. This is punishable with up to a $10,000 fine and up to 30 years in prison.

Vehicular manslaughter is defined under Florida Statute Section 782.071 as when the driver of a vehicle operates recklessly, which leads to the death of another person. Unlike a DUI manslaughter charge, there does not need to be any alcohol level present in the driver, only that they were driving recklessly. However, like DUI manslaughter, the penalty for vehicular manslaughter is a second-degree felony, but is upgraded to a first-degree felony if aid is not rendered at the scene of the crash.

Example Case

Unlike alcohol or other controlled substances, nitrous oxide leaves your body in just minutes. This can make it difficult to prove whether or not a person has inhaled the gas. In a recent legal case in Florida, there was a unique case to determine whether to charge a defendant with DUI manslaughter or vehicular manslaughter.

On July 1, 2020, Tucker Hoopengarner, 29, was arrested for causing a car accident after he veered into oncoming traffic and collided with a Kia Optima. The defendant was recorded driving at 79mph, only to slow down to 67mph at the point of impact—the speed limit was 45mph. The driver of the Kia was killed on impact. When police investigated the scene, they found a canister of whipped cream on Hoopengarner’s floorboard. There were several empty canisters and a box that was marked “XXX Platinum – 50 Triple Refined Cream Chargers.”

Police suspected that Hoopengarner had inhaled the gas while driving, and lost consciousness moments before driving into the Kia. After getting taken to the hospital, a nurse found a pipe and marijuana in Hoopengarner’s pocket. He showed the nurse his medical marijuana card, but it had expired a few days prior.

 Hoopengarner’s attorney requested that the case be dismissed, since there was no way to prove whether the defendant had inhaled the gas while driving. The tip of the canister’s dispense was also broken, which was another argument from the defense. In the search warrant application, it noted that Hoopengarner seemed “spaced out” after the collision, but the defense argued that it was a typical reaction after experiencing such a severe car wreck.

In a surprising turn in the case, a deal occurred on July 27^th, 2022. Hoopengarner pleaded guilty to vehicular homicide for the death of Jill Lawniczak. In the guilty admission, he also admitted to the charge of unlawful distribution of nitrous oxide. Hoopengarner received a sentence of six years in prison, 10 years of probation, and 50 hours of community service. The defendant will also have to attend a victim-impact panel, which features individuals who have been impacted by reckless drivers.

Finding a Defense Attorney in Tallahassee, Florida

If you or a loved one have been accused of a crime involving nitrous oxide, it is imperative that you seek out the advice of a skilled defense attorney. Any drug charge is taken very seriously in Florida, and can result in expensive fines, potential jail time, and affecting the course of your future. You need an experienced lawyer on your side to build you the best possible defense. Don Pumphrey and his team at Pumphrey Law Firm have represented clients across the state for various charges. We vow to stand in your corner and fight for your freedom. For a free consultation call (850) 681-7777 or leave an online message.

Written by Karissa Key

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