APPLETON, WI (WTAQ) - “Huffed” driving is not drunk driving.

That’s what a state appeals court ruled Wednesday, when it upheld the dismissal of an OWI charge against an Appleton woman.

40-year-old Marilyn Torbeck was arrested after doctors learned that she inhaled an aerosol to get high in a practice known as “huffing.” Authorities said she almost hit a mini-van before driving her car into a ditch in Oshkosh last year.

A blood test found the aerosol chemical DFE in her system. But Winnebago County Circuit Judge Karen Seifert ruled that DFE is not a legal intoxicant, so she threw out the driving while intoxicated charge against Torbeck.

The Second District Appellate Court agreed, noting that DFE is not officially a controlled substance under state or federal laws. The court also noted the definition of “intoxicate” as being excited or stupefied by alcohol or drugs – and DFE is not a drug. And the appellate judges said Torbeck could have been cited for reckless driving instead.

Winnebago County District Attorney Christian Gossett argued that DFE causes a reduction in muscle control and euphoria. And he said a state chemist concluded that it causes a “marked impairment” for driving.

Gossett also said the ruling goes against the intent of Wisconsin’s OWI laws by not protecting other drivers from huffers.