If you were drunk at the time, can you be convicted?

By , Attorney · Seattle University School of Law

Intoxication is not an excuse for criminal conduct, but it may deprive an intoxicated person of the mental capacity to form the intent required by law to be convicted of certain crimes. This is a very complex area of law and standards differ from state to state. This article gives a general summary of the law on intoxication as a defense to certain crimes.

State of Mind and Intent

Maybe it wasn't the devil that made you do it, but it was demon rum. People accused of crimes have often argued that they should not be held fully responsible for their actions because they were not fully in control of them due to intoxication. Under federal and state laws in the U.S., in order for a person to be convicted of most crimes, the prosecutor must prove that the defendant had a particular criminal intent, or mental state, when committing the crime. Intoxication may negate the element of criminal intent. But the success of the intoxication defense depends on the type of intent required by the law to convict the person of the crime charged.

"General intent" crimes

Many offenses require that the prosecutor prove only that the defendant had the "general intent" to do what he did. This means proving that the defendant intentionally did something the law prohibits, but didn't necessarily intend the consequences that followed. Intoxication usually is not a defense to a crime requiring general intent.

For example, a drunk person who fires a pistol at the stroke of midnight on New Year's Eve, unintentionally killing another person, did not plan to kill that person—the drunk shooter may not even have known the person was in the vicinity. But the drunk shooter had the general intent to break a law (firing a gun in public), and the killing occurred as a result of that general intent and the conduct that followed it. Thus, the shooter could be charged with manslaughter in most states and his drunken state would be no defense, even though he could argue that he would not have engaged in the same conduct while sober.

Where a crime is defined by reckless conduct or negligence, intoxication will likely not be a defense, because it is foreseeable that alcohol will lead to reckless or negligent behavior. Manslaughter, which includes accidentally killing another person without premeditation or malice, is a general intent crime.

"Specific intent" crimes

Other crimes require that the prosecutor prove that the defendant specifically intended the consequences of his illegal act. "Specific intent" means the intent to accomplish the precise act that the law prohibits. Intoxication may be a defense to a crime requiring specific intent.

In states where crimes such as murder are broken down into "degrees" of severity, intoxication may be a defense to the most severe degree (such as first degree murder). A first degree murder conviction usually requires proof of a specific intent to kill, premeditation, and deliberation. Intoxication may prevent a person from being able to form that level of intent. If so, the person charged could raise her intoxication as a defense to first degree murder.

For example, suppose a woman learns that her partner is having an affair and goes to a bar to drown her sorrows. After several drinks, she decides to confront the lovers and tracks him and his paramour down in a hotel room. Upon catching them together red-handed, and in a drunken rage, she pulls her gun out of her bag and shoots and kills her partner. On trial for first degree murder, the woman might argue that she was too drunk to form the premeditated intent required for first-degree murder, acting instead upon a drunken impulse when she saw the two together. This may help her avoid a first degree murder charge. However, if she had purchased the gun immediately upon learning of the affair and before going to the bar, her defense would likely fail. This is because her conduct suggested that she might have formed the intent to kill before becoming intoxicated.

How the law treats an intoxicated defendant very much depends on where the person is charged. Some courts bar the defense of intoxication, even if the defendant was rendered effectively unconscious ("blacked-out"), where the defendant voluntarily consumed the alcohol or drug that brought him to that state.

And, even if the intoxication defense succeeds in convincing a judge or jury that the defendant could not form the intent to be convicted of a specific intent crime, the defendant may still be convicted of a lesser offense that has only a general intent requirement.

Intoxication as a Defense

The intoxication defense has a checkered history and its success now depends largely on where the defendant is being tried. Some states outright prohibit defendants from raising intoxication as a defense to certain crimes. In those that will consider it, courts are a bit more receptive to the defense than in the past.

Historical view

English common law, upon which the legal structure of the U.S. was based at the country's founding, rejected the intoxication defense for any crime committed by a person who voluntarily induced his or her own state of intoxication.

Involuntary intoxication, on the other hand, has historically been viewed as a defense to most crimes. But what constitutes involuntary intoxication is open to dispute. Some courts have held that a person is voluntarily intoxicated when he willingly takes a first drink and then several more, after becoming so intoxicated that he was not in total control of his conduct. Other courts have held that an alcoholic may not be able to control his drinking and so could be considered to be involuntarily intoxicated by virtue of the compulsion of his disease. As a result, the definition and application of involuntary intoxication differs from state to state. However, people who have been given an intoxicating substance without their knowledge or consent, becoming intoxicated as a result, may raise the defense of intoxication to any crime they committed while intoxicated.

The Model Penal Code and the current approach

The Model Penal Code is not itself a set of laws, but a proposed voluntary model for states to use to create a more consistent and standardized set of criminal laws across all states. Over two-thirds of the states have used the model to revise their criminal codes. Only a few states have adopted the model code in its entirety.

Under the Model Penal Code ("MPC"), any type of intoxication is a defense to a crime if intoxication eliminates an element of the crime, such as the required intent. Under the MPC, "pathological intoxication" (in other words, alcoholism) can form the basis of an involuntary intoxication defense.

Subjective Factors Play A Role In The Intoxication Defense

Most courts will consider individual factors when assessing a defendant's intoxication defense. In one case, a man spent the afternoon drinking at least five drinks with high alcohol content and then killed his neighbor's dog. At trial, the man argued that he was so intoxicated he could not have formed the intent to harm the animal. But the judge found that the man had a high tolerance for alcohol. Given this factor, the judge rejected the intoxication defense,ruling that the man was likely less intoxicated than he claimed to be when he shot the dog.

Intoxication and temporary insanity

Some states have completely done away with the intoxication defense, but allow a defendant to offer evidence that, due to intoxication or mental illness, he suffered a diminished capacity to form the mental intent to commit a particular crime.

The Model Penal Code recommends a standard for diminished capacity. That standard allows a criminal defendant to show that he lacked substantial capacity to:

  • appreciate the criminality (wrongness) of his conduct, or
  • conform his conduct to the requirements of the law (essentially, control himself and follow the law).

To the extent that a defendant can show that intoxication led to either of these types of defects in capacity, he may be able to refute the prosecution's evidence that he intended to commit the crime. This is the same test that would be used to assess lack of capacity based on mental illness.

Federal law is slightly different. Under a statute passed by Congress in 1984, a criminal defendant may avoid conviction if he proves that, when the crime occurred, he was unable to appreciate:

  • the nature and quality of his acts, or
  • the wrongfulness of his acts

due to severe mental disease or defect, including intoxication. (18 U.S.C. § 17 (a).)

Criminal Laws May Lack Clarity as to Intent

Some criminal laws use terms such as "willfully" or "knowingly" to describe the intent that must be proven to convict a person of the crime. While such words seem to suggest a specific intent, courts have at times ruled that the level of intent described by such terms may depend upon the type of crime.

Felony murder is a category of first degree murder that does not require premeditation or even intent to kill. An example is an armed bank robbery where the robber accidentally kills a bank customer. Felony murder requiresonlythat the defendant intended to commit the underlying felony (for example, armed robbery) in order to be convicted of a killing that occurred in the commission of that felony. However, if the defendant was intoxicated during the commission of the underlying felony and the underlying felony required proof of specific intent, the defendant may argue that his intoxication prevented him from forming the required intent. In the armed robbery example, if the person charged with felony murder was so intoxicated that he could not form the intent to commit robbery, he may avoid conviction of felony murder.

Intoxication Is An Unreliable Defense

Even though incapacity caused by intoxication may at times present a defense to certain crimes, it is by no means a certain defense and rarely a complete one. And, the laws on the defense vary greatly from state to state, and are quite complex. If you have questions about intoxication as a defense to a criminal charge or any other criminal law matter, consult a criminal defense attorney with experience in the laws in your state.

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