In
criminal law
Criminal law is the body of law that relates to crime. It proscribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and Well-being, welfare of people inclusive of one's self. Most criminal l ...
, the intoxication defense is a
defense
Defense or defence may refer to:
Tactical, martial, and political acts or groups
* Defense (military), forces primarily intended for warfare
* Civil defense, the organizing of civilians to deal with emergencies or enemy attacks
* Defense industr ...
by which a
defendant
In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case.
Terminology varies from one juris ...
may claim
diminished responsibility
In criminal law, diminished responsibility (or diminished capacity) is a potential defense by excuse by which defendants argue that although they broke the law, they should not be held fully criminally liable for doing so, as their mental funct ...
on the basis of
substance intoxication
Substance intoxication is a transient condition of altered consciousness and behavior associated with recent use of a substance. It is often maladaptive and impairing, but reversible. If the symptoms are severe, the term "substance intoxicatio ...
. Where a crime requires a certain mental state (''mens rea'') to break the law, those under the influence of an intoxicating substance may be considered to have reduced
liability for their actions. With regard to punishment, intoxication may be a
mitigating factor
In criminal law, a mitigating factor, also known as an extenuating circumstance, is any information or evidence presented to the court regarding the defendant or the circumstances of the crime that might result in reduced charges or a lesser sente ...
that decreases a prison or jail sentence. Numerous factors affect the applicability of the defense.
Variation
Societies
A society () is a group of individuals involved in persistent social interaction or a large social group sharing the same spatial or social territory, typically subject to the same political authority and dominant cultural expectations. ...
have varied in their attitudes and
cultural standards regarding public
intoxication, historically based on the relationship between
religion and drugs in general, and
religion and alcohol in particular. In some instances, consumption of a
mind-altering substance has formed the basis of
religious
Religion is a range of social- cultural systems, including designated behaviors and practices, morals, beliefs, worldviews, texts, sanctified places, prophecies, ethics, or organizations, that generally relate humanity to supernatural ...
or other socially approved ceremonies and festivals. In others, intoxication has been stigmatized as a sign of human weakness, of
immorality
Immorality is the violation of moral laws, norms or standards. It refers to an agent doing or thinking something they know or believe to be wrong. Immorality is normally applied to people or actions, or in a broader sense, it can be applied to ...
, or as a
sin
In religious context, sin is a transgression against divine law or a law of the deities. Each culture has its own interpretation of what it means to commit a sin. While sins are generally considered actions, any thought, word, or act considered ...
. Secular approaches may also vary, having less inherent opposition to drugs but acknowledging that these may affect the
inhibition
Inhibitor or inhibition may refer to:
Biology
* Enzyme inhibitor, a substance that binds to an enzyme and decreases the enzyme's activity
* Reuptake inhibitor, a substance that increases neurotransmission by blocking the reuptake of a neurotransm ...
s that help to keep socialized individuals from breaking prevailing social
taboo
A taboo is a social group's ban, prohibition or avoidance of something (usually an utterance or behavior) based on the group's sense that it is excessively repulsive, offensive, sacred or allowed only for certain people.''Encyclopædia Britannica ...
s which may or may not have been expressly criminalized. The attitude of a legal system to intoxicating substances can affect the applicability of intoxication as a defense under its laws: a system strongly opposed to a substance may even view intoxication as an
aggravating factor rather than a mitigating one.
The effect of intoxication on criminal responsibility varies by
jurisdiction
Jurisdiction (from Latin 'law' and 'speech' or 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, the concept of jurisdiction applies at multiple level ...
and offense. The
criminal code
A criminal code or penal code is a document that compiles all, or a significant amount of, a particular jurisdiction's criminal law. Typically a criminal code will contain offences that are recognised in the jurisdiction, penalties that might ...
in question may require proof of various levels of intent. This may range from
premeditation, through various degrees of intent or willingness to commit a crime, general recklessness, and finally no intent at all in some instances of
strict liability
In criminal and civil law, strict liability is a standard of liability under which a person is legally responsible for the consequences flowing from an activity even in the absence of fault or criminal intent on the part of the defendant.
Und ...
. Intoxication may serve as a defense against proving more specific forms of intent. If so, its potential effectiveness will sometimes hinge on whether the defendant's intoxication was ''voluntary'' or ''involuntary'': the defense would be denied defendants who had voluntarily disabled themselves by knowingly consuming an intoxicating substances, but allowed to those who had consumed it unknowingly or against their will.
Voluntary and involuntary consumption
A distinction may be made based on whether the defendant chose to become intoxicated, and is thus responsible for their diminished control or not. As an example, in the
Dutch courage
Dutch courage, also known as pot-valiance or liquid courage, refers to courage gained from intoxication with alcohol.
Uses
Criminal
Alcohol is occasionally used by criminals as a tool to commit alcohol-related offenses. These may include ...
defense (see the
Gallagher case in English law on intoxication), the accused hates his spouse but fears to take action. The accused therefore buys a bottle of
brandy
Brandy is a liquor produced by distilling wine. Brandy generally contains 35–60% alcohol by volume (70–120 US proof) and is typically consumed as an after-dinner digestif. Some brandies are aged in wooden casks. Others are coloured ...
and a sharp knife. In the morning, the bottle is empty and the knife is in the spouse's heart. Because the accused had a plan and
weakening the inhibitions by drunkenness was a part of that plan, an intoxication defense is not feasible. But if, at a party, a bowl of fruit punch is "spiked" by someone who secretly adds
gin
Gin () is a distilled alcoholic drink flavoured with juniper berries and other botanical ingredients.
Gin originated as a medicinal liquor made by monks and alchemists across Europe. The modern gin was modified in Flanders and the Netherlands ...
, the resulting drunkenness is not voluntary and might be considered a possible defense. A sharper distinction is drawn in
Islamic law
Sharia, Sharī'ah, Shari'a, or Shariah () is a body of religious law that forms a part of the Islamic tradition based on scriptures of Islam, particularly the Qur'an and hadith. In Islamic terminology ''sharīʿah'' refers to immutable, intan ...
, where involuntary intoxication may remove criminal if not financial responsibility, while voluntary intoxication has no effect and the accused is treated as if sober.
Foreseeability test
The presence or absence of liability may hang on a foreseeability test. The fact that the consumption of alcohol or the ingestion of drugs may cause a loss of control is well known. Thus, anyone who knowingly consumes is, at the very least,
reckless as to the possibility of losing control. If they did not wish to lose control, they would not consume, so loss of control must be within the scope of their intention by continuing to consume. But, loss of control is not instantaneous and without symptoms. The issue of involuntary consumption is therefore contentious. In most legal systems, involuntary loss of control is limited to cases where there is no real loss of control with noticeable symptoms. Thus, for example, in many states, the blood alcohol level for the commission of the offence of
driving under the influence
Driving under the influence (DUI) is the crime of driving, operating, or being in control of a vehicle while one is impaired from doing so safely by the effect of either alcohol (drug), alcohol (see drunk driving) or some other drug, whether re ...
is set sufficiently low that people might exceed the limit without realising that they had consumed enough alcohol to do so. Leaving aside the issue that, in some states, this is a
strict liability
In criminal and civil law, strict liability is a standard of liability under which a person is legally responsible for the consequences flowing from an activity even in the absence of fault or criminal intent on the part of the defendant.
Und ...
offense excluding drunkenness as a defense, there is usually a requirement that the person who "spiked" the drinks be prosecuted in place of the driver. This reflects the fact that the commission of a crime has been procured by the actions of secretly adding the alcohol and the practical fact that without this rule, too many accused who are only marginally over the limit, might be encouraged to blame others for their intoxication.
In the US, the
Model Penal Code
The Model Penal Code (MPC) is a model act designed to stimulate and assist U.S. state legislatures to update and standardize the penal law of the United States.MPC (Foreword). The MPC was a project of the American Law Institute (ALI), and was pu ...
also includes the possibility of "pathological intoxication" whereby a medical condition allows a small amount of alcohol to cause disproportionate intoxication that the drinker could not foresee.
More generally, the defense would be denied to people experiencing symptoms of intoxication who continued to consume the spiked drink because they ought to have known what was happening to them. Equally, if no further consumption occurred but they ought to have recognized that they were affected by an unknown substance, beginning an activity such as driving would not fall within the defense. In other words, the policy underpinning the operation of the law favors the protection of the public as against the interests of an individual who recklessly or with wilful blindness exposes the public to danger.
Offenses of basic and of specific intent
In some states, a distinction is based on the nature of the ''mens rea'' requirement. While voluntary intoxication may not be a defense to an offense of basic (sometimes termed "general") intent, it is allowed as a defense to offenses requiring a ''specific intent''. This term refers to two separate types of offense:
#A limited number of offenses require a further element of intent beyond the ''basic intent'' (where the ''mens rea'' is no more than the intentional or reckless commission of the ''
actus reus
In criminal law, ''actus reus'' (; : ''actus rei''), Latin for "guilty act", is one of the elements normally required to prove commission of a crime in common law jurisdictions, the other being ("guilty mind"). In the United States, it is some ...
''). This additional element is termed ''specific intent''.
[Rubin (1993) The Voluntary Intoxication Defense AOJ Bulletin IOG. pages 3 & 4.]
#The
inchoate offenses
An inchoate offense, preliminary crime, inchoate crime or incomplete crime is a crime of preparing for or seeking to commit another crime. The most common example of an inchoate offense is "attempt". "Inchoate offense" has been defined as the fol ...
such as attempt, solicitation, and conspiracy require specific intent in a slightly different sense. The test for the existence of ''mens rea'' may be:
::(a) subjective where the court must be satisfied that the accused actually had the requisite mental element present in his or her mind at the relevant time (see
concurrence
In Western jurisprudence, concurrence (also contemporaneity or simultaneity) is the apparent need to prove the simultaneous occurrence of both ("guilty action") and ("guilty mind"), to constitute a crime; except in crimes of strict liabilit ...
);
::(b) objective where the requisite ''mens rea'' element is
imputed to the accused on the basis that the
reasonable person
In law, a reasonable person or reasonable man is a hypothetical person whose character and care conduct, under any ''common set of facts,'' is decided through reasoning of good practice or policy. It is a legal fiction crafted by the courts an ...
would have had the mental element in the same circumstances;
::(c) hybrid where the test is both subjective and objective.
:The rationale for the existence of criminal laws is as a deterrent to those who represent a danger to society. If an accused has actually committed the full offence, the reality of the danger has been demonstrated. For where the commission of the ''actus reus'' is in the future, a clear subjective intention to cause the ''actus reus'' of the full offense must be demonstrated. Without this "specific intent", there is insufficient evidence that the accused is the clear danger as feared because, at any time before the commission of the full offense, the accused may change his or her mind and not continue.
If a "specific intent" in either sense is required and there is clear evidence that the accused was too intoxicated to form the element subjectively, this fact is recognised as a defense unless the loss of control was part of the plan. This, however, is of little value to defendants since there are almost always offenses of basic intent that can be charged and/or the basic intent offenses are usually
lesser included offenses and an alternative verdict can be delivered by judge or
jury
A jury is a sworn body of people (jurors) convened to hear evidence, make Question of fact, findings of fact, and render an impartiality, impartial verdict officially submitted to them by a court, or to set a sentence (law), penalty or Judgmen ...
without the need for a separate charge. In
English law
English law is the common law list of national legal systems, legal system of England and Wales, comprising mainly English criminal law, criminal law and Civil law (common law), civil law, each branch having its own Courts of England and Wales, ...
, note the controversial ''Jaggard v Dickinson''
980
Year 980 ( CMLXXX) was a leap year starting on Thursday of the Julian calendar.
Events
By place Europe
* Peace is concluded between Emperor Otto II (the Red) and King Lothair III (or Lothair IV) at Margut, ending the Franco-Germa ...
3 All ER 716 which held that, for the purposes of the statutory defense of ''lawful excuse'' under s5
Criminal Damage Act 1971
Property damage, Criminal damage is a crime in English law. Originally a common law offence, today it is defined for England and Wales by the Criminal Damage Act 1971, which creates several offences protecting property rights. The act provides ...
, a drunken belief will found the defense even though this allows drunkenness to negate basic intent. This is limited authority and does not affect the generality of the defense.
Examples of specific intent crimes include first degree murder based on premeditation and deliberation, attempts, burglary (intent to commit larceny), larceny (intent to steal), possession of or receiving stolen property (intent to steal), and robbery (intent to steal). General intent crimes include arson, rape, common law murder, and voluntary manslaughter.
[Rubin (1993) The Voluntary Intoxication Defense AOJ Bulletin IOG. pages 5-7.]
See also
*
Settled insanity
References
{{DEFAULTSORT:Intoxication Defense
Criminal defenses
Drug policy