Siblings Seek to Close DWI Loophole in Brother's Memory

December 09, 2017 10:35 PM

A Rosemount man wrote to his lawmaker in hopes of closing a driving-while-intoxicated statute loophole in Minnesota by adding difluoroethane (DFE) to the list of intoxicating substances.

The letter came after Clay Kendhammer lost his brother in a fatal crash where investigators say the driver was high from "huffing."


"We come from compassionate families," he said. "People who chose to use those products to get into an altered state, we hope they get help. Until they can, government needs to protect us from them."

Kendhammer's brother, 32-year-old Adam died along with his partner Bryan Rudell and their friend Jeremy Berchem in a car crash this summer on Interstate 94 in western Wisconsin.

"One of my first thoughts was, 'God I hope it was someone who had dementia, or someone who had a heart attack or a stroke,'" Clay said.

"When the collision happened, I don't call it an accident, because it wasn't an accident.'

Dunn County prosecutors said 36-year-old Serghei Kundilovski "huffed" cans of air duster before the fatal wrong-way crash, which led to criminal charges.

Kundilovski entered three guilty pleas for homicide by intoxicated use of vehicle in late November, according to court records. 

Charging documents show cans of air duster were found at the scene, and ethanol and 1, 1-difluoroethane (DFE) was later detected in Kundilovski's blood tests. 

Refrigerated-based propellant cans, often used to clean computer keyboards and electronics, include DFE. 

Prosecutors say Kundilovski was out of jail for just several hours before the fatal crash, He had previously been arrested for operating a car after revocation.  

Minnesota's DWI laws don't include DFE.

But state senator Greg Clausen of Apple Valley is writing a bill for the next session to allow driver's intoxicated due to DFE to be charged with DWI offenses.

"Here in Minnesota we would not have been able to hold the responsible party liable for that, "said Clausen, DFL-Apple Valley, of the accident that claimed the life of Kendhammer's brother.

"I'm hoping this legislation will change that."

Should lawmakers expand the list of substances people can be arrested for if they are caught driving while impaired? Send a message to Sen. Greg Clausen, Sen. Paul Gazelka and Gov. Mark Dayton below:

In October, Minnesota's Supreme Court reversed the impaired driving convictions of a woman convicted for allegedly inhaling compressed air from a can. 

Justice Natalie Hudson wrote for the majority that "…a driver dangerously intoxicated by DFE is not criminally liable under the plain language of the current DWI statutes."

The justice said it is up to the legislature to refine the law.

Sen.Clausen's bill, now being drafted, has already found the backing of Minnesota's DWI Task Force.

"This loophole threatens public safety on Minnesota's roadways, as well as (removing) an opportunity for intervention that can provide a person with resources for treatment," said David Bernstein, the chair of Minnesota's DWI Task Force.

Clay and his brother Tom plan to testify for Clausen's bill if it goes before a committee when the legislature returns later this winter.

"It's a horrific experience to undergo," Tom said. "When you think of how long it takes to get a law like this corrected, how many other people will have to go through what we've gone through?" 


Eric Chaloux

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