It sometimes happens that accusations of crimes happen when one or more parties are under the influence of drugs or alcohol.  Sometimes this intoxication is voluntary (i.e., a person knowingly and deliberately consumed intoxicants) and sometimes it is involuntary (i.e., a person was given intoxicants without his or her knowledge).

Suppose, for example, a person attends a party and drinks punch that has been “spiked.”  He then commits a crime at the party.  When is intoxication (voluntary or involuntary) a defense to a criminal charge?  What are the rules?  The answers can get complicated, depending on a variety of factors.  We discuss the basic outlines here.

First, what is the meaning of the term “voluntary intoxication”?  The word “voluntary” here is generally taken to mean “self-induced”, in that the person intended to have intoxicants introduced in his or her system, and knew of the chemical effects of the intoxicants.  But there are nuances to this definition.  The actor must know he is introducing the substance into his system, but apparently need only be “negligent” as to its chemical effect on his body.  Also, it appears that drugs taken as part of a program of medical advice is not considered “voluntary intoxication.”

This makes sense, as a person should be able to rely on the sound advice of medical professionals.  “Involuntary intoxication” by contrast is intoxication obtained by fraud, deceit, trickery, compulsion, or some other factor that makes the introduction of drugs into the body not a deliberate act.

Where someone’s intoxication is involuntary (as described above), this fact can be used as a defense where the intoxication negates a required element of the offense.  This makes good sense, and it ties in the basic idea of the prosecution needing to prove every element of an offense beyond a reasonable doubt.  But where the intoxication is voluntary or self-induced, the situation can be quite complicated.  Cases and situations will vary greatly, but the following general principles are good ones:

1.      Some jurisdictions permit voluntary intoxication as a defense if it negates any required element of an offense.  Courts have taken steps to limit this rule, but it has some historical lineage.  For example, the 1981 version of the Kansas Statutes (K.S.A. 21-3208(2)) references it.

2.      Some other jurisdictions do not allow voluntary intoxication to negate “recklessness” if the defendant would have known of the risk had he been sober.  The idea here is that a person should not be able to take advantage of a situation (intoxication) that he himself created, and then use that as a defense.  This approach is basically a limitation on the voluntary intoxication defense.  In other words, voluntary intoxication will only be able to negate elements of offenses in certain circumstances.  Under this approach, voluntary intoxication will typically be available to negate the elements of “purpose, motive, or intent.”

3.      Another approach, somewhat older and based on common law, is to allow voluntary intoxication as a defense for “specific intent crimes” but not allow it for “general intent crimes.”  General intent is defined as the intent generally to do the physical act in question.  Specific intent is different.  It is some intent in addition to do the physical act in question that the crime requires.

4.      Some jurisdictions allow voluntary intoxication only as a defense to homicide, if the defendant can show it negates the elements of deliberation or premeditation.  Here again, we have the idea of limiting the scope of the voluntary intoxication defense.

5.      Some jurisdictions refuse to recognize the defense under any circumstances, or only in cases where the voluntary intoxication causes the legal equivalent of insanity.  This rule is a harsh one, not favored by most courts, and can result in unfair outcomes.  Although such jurisdictions may permit intoxication as a mitigating factor in sentencing, that does little to soften the harshness of this approach.

The key thing here is, as in all cases, to a proper analysis of the facts of the case and the law of the jurisdiction in question.  Both Kansas and Missouri have model jury instructions, as do the federal courts, and these should be the starting point for any attempt to use intoxication defenses.  If the facts merit it, and the case law supports it, non-standard jury instructions can be offered to a court during trial, even if they are not found in the model jury instructions.

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