Attorney for driver in crash that killed three JMU students requested evidence of ‘whippets’ found in the car be removed

HARDY COUNTY, W. Va. (WRIC) -- The attorney for Campbell Ryan Fortune, the driver in the car crash that killed three James Madison University (JMU) students in 2023, asked the court to exclude any evidence related to the “whippets” found on the driver’s side floorboard of the car.

Whippets, a slang term for nitrous oxide (N2O), is a type of gas most commonly found in whipped cream chargers. Inhaling N2O can cause physical and mental impairment, numbness and hallucinations. According to the National Library of Medicine, the use of whippets “is not safe.”  

Fortune was charged at 19 years old after crashing into a tree along West Virginia Route 259, killing John “Luke” Fergusson of Richmond, 19, Nicholas Troutman of Henrico County, 19, and Joshua Mardis of Williamsburg, 20, on Feb. 2, 2023.

According to court documents, a group of approximately 40 members and pledges in the JMU Pi Beta Chi Fraternity (PBX) drove from Harrisonburg to Paradise City Gentlemen’s Club in Hardy County, West Virginia, 45 minutes away. 

After an hour at the club, the men headed back toward Harrisonburg. Fortune was only four miles away from the club on Route 259 when court documents stated the car swerved partially off the southbound road and then swerved back into the northbound lane “violently crashing into a fence and a tree, causing the car to stand upright and pivot 180% around the tree."

Records said the car Fortune was driving indicated the car’s speed went from 83 mph to 95 mph half a second before the crash.  

Documents stated Fortune did not have alcohol in his system, but law enforcement did not ask for a toxicological analysis to test for other substances. Documents said witnesses saw him smoking marijuana.

A few days after the crash, officers inspected the car he was driving and found an opened package of whippets, a used canister on the driver's side floorboard and a cylinder-shaped metal object colloquially called a "cracker,” which is typically used in commercial kitchens for holding ingredients that are infused with N2O located under the driver's seat, documents said.  

Investigators also found similar items in the parking lot of the club.  

On Feb. 3, 2025, Fortune’s attorney, Daniel R. James, filed for the Hardy County Circuit Court to “exclude any evidence relative to the physical evidence of nitrous oxide.” This was before Fortune accepted the plea deal, and this case was scheduled to go to trial.

James argued that there is currently no valid way to test for whippets in someone’s system or how long there could be driving impairment after using whippets. It is not illegal to be in possession of N2O in West Virginia. 

8News has reached out to James for comment but has not heard back. 

Fortune, now 21, of Henrico County was originally charged with three counts of negligent homicide, one count of reckless driving with injury, one count of underage possession of beer, one count of not having a certificate of insurance and one count of speeding, on May 15, 2023. Fortune pleaded not guilty to all seven charges on May 25, 2023.  

Fortune accepted the plea deal on Feb. 25 in Hardy County Circuit Court in West Virginia, convicting him of one count of negligent homicide and one count of speeding, both misdemeanors. In West Virginia, negligent homicide is punishable by up to one year in regional jail or a $100-$1,000 fine. Speeding is punishable by an up to $100 fine. 

The families of the three victims shared this statement with 8News: 

“The Troutman, Fergusson, and Mardis families strongly oppose the plea deal, which was clearly expressed to the Hardy County Prosecutor prior to the plea offer. Allowing Mr. Fortune to plead No Contest to one count of negligent homicide (a misdemeanor charge) for three deaths and reducing reckless driving to a speeding charge diminishes the gravity of this tragedy and is unfathomable to our families.”