EXCUSE: INTOXICATION

The importance of intoxication as a criminal defense can be easily exaggerated. In many cases the defense is legally barred, where available it is often rejected on factual grounds by the decision maker, and even when successful it normally serves to reduce the level of conviction rather than excuse entirely. Yet intoxication remains of great interest to the student of criminal law, for intoxication arguments raise the full range of responsibility issues, from criminal intent to problems with rationality and self-control.

Voluntary intoxication

Whether a voluntarily intoxicated person may assert a so-called intoxication defense in a criminal case will depend on: (1) whether the jurisdiction permits intoxication evidence to be used to negate the criminal intent, or mens rea, required for the offense; and (2) if so, whether it appears likely that the accused actually did lack the required mens rea because of intoxication.

Courts have long emphasized that evidence of voluntary intoxication goes only to the narrow issue of mens rea, such as intent to steal or intent to kill. Defendants may not claim excuse based on intoxication-induced personality change or associated loss of self-control, even though these effects may be central to the intoxicant's criminogenic effect. The usual rationale for this position is that the person who chooses to become intoxicated must take the consequences of that choice, especially if those consequences prove dangerous to others. The criminal law's policy also accords with its presumption of unitary personal identity. The law presumes that every individual human is a single responsible entity, regardless of the often dramatic personality chances caused by mood, intoxication, or circumstance.

Beginning in the nineteenth century, English and American courts began to allow defendants to use voluntary intoxication in arguments about mens rea. In a compromise between general principles of culpability, which argue for unrestricted use of intoxication evidence, and public safety worries about the dangers of the intoxicated, which point the law in the opposite direction, courts developed the specific intent doctrine. Defendants may use evidence of voluntary intoxication to negate a form of mens rea known specific intent, but not those—more common—forms of mens rea known as general intent (People v. Hood, 463 P.2d 370 (Cal. 1969); D.P.P. v. Majewski, (1976) All.E.R. 142). Thus the critical distinction is whether the particular crime is one of specific or general intent.

To illustrate, consider a case in the United States where a defendant is charged with first-degree premeditated murder, a crime of specific intent. The defendant may argue that because of inebriation he lacked the specific intent—the premeditation—necessary for the offense. He may argue that intoxication meant he acted without the cool and calculated resolve to kill that is premeditation. If the decision-maker agrees, but finds that all other elements of the offense are established, the defendant will be convicted of some lesser, general intent form of homicide.

The specific intent approach to intoxication has proven highly durable for a number or reasons. The specific versus general intent distinction suggests a hierarchy of mental states that seems to accord with the effects of intoxication. We know that intoxication commonly interferes with higher levels of mental functioning. The approach also has a built-in public safety limit in its restriction to specific intent crimes. The widespread availability of general intent offenses means that few intoxicated harm-doers will go entirely unpunished. Nevertheless, the doctrine has some major flaws.

Courts and commentators have long noted that the line between general and specific intent is often obscure, dependent more on the form of words and accidents of historical interpretation than on principled distinctions. In different jurisdictions, or at different times, the same offenses can be oppositely characterized. For example, depraved-heart murder is sometimes labeled a crime of general intent and sometimes one of specific intent (People v. Whitfield, 868 P.2d 272 (Cal. 1994) (specific intent); People v. Langworthy, 331 N.W.2d 171 (Mich. 1982) (general intent)). The doctrine's public safety limitation in reality proves unreliable; especially in areas of more modern criminal legislation, there may be no general intent crime, with the result that voluntary intoxication can support a complete excuse. Nor does the specific versus general distinction necessarily track the seriousness of offense. One of the most serious criminal offenses, rape, is a general intent crime, while less serious offenses such as burglary and larceny are categorized specific intent crimes. Finally, the specific versus general intent distinction does not in fact involve a hierarchy of higher and lower mental functioning. In most instances voluntary intoxication does not negate specific intent, though it might—if allowed—negate general intent.

In an effort to avoid the manifold difficulties of specific intent analysis, the drafters of the influential Model Penal Code eliminated the specific intent distinction in favor of four basic mens rea forms: purposely, knowingly, recklessly, and negligently (section 2.02). With regard to voluntary intoxication the Code states that such evidence may be used to negate purposely or knowingly mens reas. Intoxication is explicitly barred from consideration of recklessness mens rea; it is definitionally barred from negligence analysis because a judgment of negligence depends on the defendant having grossly deviated from the conduct of a the reasonable person in the situation—and the reasonable person is a sober one (sections 2.08, 2.02(d)).

The Model Penal Code's approach to voluntary intoxication has been praised for its clarity, but has drawn its own criticisms, particularly with regard to the recklessness exclusion. How is a fact finder to know what a particular person would have realized if sober? Even more troubling, the exclusion appears inconsistent with the Code's general presumption that actual awareness of criminally significant facts is critical to culpability.

We now move to the second set of voluntary intoxication issues: assuming the law allows defendants to argue no mens rea based on intoxication, will the argument work? Will the judge or jury agree that proof of mens rea fails due to intoxication? Here we confront a deliberate irony of voluntary intoxication doctrine: as a general rule it is most available where it is least likely to work, and least available where it would be most likely to work.

Although generally allowed as a matter of law under both the specific intent doctrine and the Model Penal Code, most arguments that an accused lacks an intentional mens rea will prove implausible on the facts of the case. For example, two men after an afternoon's drinking fall into an argument and then engage in a fight. One pulls out a deadly weapon and uses it to fatal effect. How likely is it that the man who killed the other lacked the purpose to kill because of intoxication? Here the prosecution might use intoxication to bolster its proof of mens rea by arguing that intoxication inspires more powerful emotions, especially anger, and less self-control, making it more likely that an intoxicated—and enraged—person will retaliate by trying (i.e., intending) to kill or do grave bodily injury. Thus the intoxicated defendant probably did act with the required mens rea.

Now consider crimes that involve careless wrongdoing, those bearing the mens rea of recklessness. In these cases under both the Model Penal Code (with its recklessness exclusion) and the specific intent doctrine (where reckless offenses are usually labeled general intent), attacks on mens rea via intoxication are generally barred. Note that if allowed, the accused in such cases might often have a plausible factual argument that he or she did not realize the risks of her conduct because of intoxication. While the prosecution may counter here that intoxication—especially alcohol intoxication—does not so much make the person unaware of risk as unconcerned about it, most lawmakers have feared that jurors will not recognize this distinction.

Doctrinal reform and the trend toward elimination

In the last three decades of the twentieth century, a number of Anglo-American jurisdictions have considered important reforms in voluntary intoxication doctrine. These reform movements have gone in opposite directions, one urging more liberal use of intoxication evidence and the other urging more restrictions on its employment.

Proponents of liberalization have argued that intoxication evidence should be used without restriction to ensure that only persons proven to have acted in conscious disregard of risk should receive serious punishment. To the extent that dangerous conduct might be excused by this approach, proponents have urged the creation of a new offense of dangerous drinking, where culpability would rest on drinking under circumstances likely to lead to wrongful conduct. A proposal of this kind was recently rejected in England, but the no-restriction approach to intoxication evidence has been judicially adopted in some parts of Australia and New Zealand (R. v. O'Connor (1980) 54 A.J.L.R. 349 (Australia); Kamipeli (1975) 2 N.Z.L.R. 610 (New Zealand)).

In the United States, reform generally has moved toward further restriction of intoxication evidence, with a significant minority of American states recently deciding to either further restrict or prohibit mens rea arguments based on voluntary intoxication (e.g., Ariz. Rev. Stat. Ann. sec. 13–503; Mont. Code Ann. sec. 45–2–203). These changes have raised issues both of constitutionality and justice.

The constitutionality of barring voluntary intoxication evidence under federal law was largely resolved by the U.S. Supreme Court in Montana v. Egelhoff (518 U.S. 37 (1996)). In that decision a majority of the justices agreed that Montana's statute barring consideration of intoxication as to mens rea was consistent with the U.S. Constitution's due process requirement that the prosecution prove every essential element of a criminal offense beyond a reasonable doubt. The court's majority was split on why the statute passed constitutional muster, however.

The majority justices disagreed on both the reach of the U.S. Constitution's due process clause and the proper categorization at Montana's statute. Justice Anthony Scalia, writing for a plurality, held that the statute represents a bar on certain mens rea evidence, but that it was permissible because due process allows states wide latitude in establishing rules of evidence. Thus a state may bar certain evidence relevant to an element of the offense as to which the prosecution has the burden of proof, without effecting an unconstitutional shift in the overall burden of proof. In her concurrence, Justice Ginsburg read the Montana statute as a rule of substantive criminal law and voted to uphold on the ground that states have broad latitude to define crimes as they wish, including creating, modifying, or eliminating defenses to those crimes. Meanwhile the four dissenters argued that the statute impermissibly shifted the burden of proof on an essential element of the offense—mens rea—and so violated due process.

Restrictions on intoxication evidence as to mens rea also raise significant justice issues. If, as the criminal law generally presumes, serious blame and punishment require proof of mens rea, then barring important evidence about mens rea is unjust. Only a few counterarguments are available. First, proponents of restriction might argue that the evidentiary bar simply eliminates confusion about mens rea because, as we have seen, intoxication evidence rarely negates criminal intent. Yet there remain some cases where it does. Proponents most commonly argue that a person's fault in becoming drunk makes the person responsible for all subsequent wrongs. This conflates two quite different forms of misconduct, however. Choosing to drink to excess is hardly the moral equivalent of choosing to violently attack or kill another, for example.

A third approach to reform would concentrate on mens rea rather than on intoxication doctrine. If instead of requiring proof of awareness of harm-doing for serious criminality, the law required proof of a demonstrated attitude of indifference to harm-doing, then intoxication evidence could be freely allowed, consistent with both justice and public safety concerns. Under this approach intoxication evidence might in some cases bolster the prosecution's case by demonstrating lack of concern for harm-doing while in other cases might assist the defense by suggesting less culpable reasons for disregard of risk.

Involuntary intoxication

Intoxication is involuntary if the accused took the intoxicant without awareness of its intoxicating nature or if the consumption was coerced. A person claiming this affirmative defense generally must show both that the intoxication was involuntary and that it either: (1) negated the mens rea required for the offense; or (2) created a state of irrationality or loss of self-control similar to insanity.

Involuntary intoxication is most commonly claimed by individuals who take substances unaware that they may be intoxicating, either because they mistook the identity of the substance or its likely effects (Carter v. State, 710 So.2d 110 (Fla. Ct. App. 1998) (mistaking anti-depression drug for over-the-counter pain killer); People v. Scott, 194 Cal.Rptr. 633, 146 Cal.App.3d 823(1983) (unknowing ingestion of hallucinogen in punch at a party causing a psychotic episode two days later); City of Minneapolis v. Altimus, 238 N.W.2d 851 (Minn. 1976) (ignorance about effect of prescription drugs). On occasion the accused may claim pathological intoxication, a rare condition of extreme and unforeseen susceptibility to an intoxicant (Model Penal Code § 208(5)(c)). A defendant may also claim involuntary intoxication on the ground that the taking of the intoxicant was coerced by another.

Once involuntary intoxication is shown, the defendant may argue lack of mens rea due to intoxication. This argument may be used regardless of the form of mens rea. Under involuntary intoxication there is no distinction between general or specific intent and no recklessness exclusion under the Model Penal Code. On occasion, courts give the offense a broad interpretation to find a form of mens rea relevant to involuntary intoxication (as in Carter ; knowing intoxication required for driving under the influence where involuntary intoxication was alleged).

The defendant may also argue that involuntary intoxication created a state of temporary insanity. In most jurisdictions, involuntary intoxication may substitute for the mental disease or disorder element of the insanity test. Then the accused must show a major deficit in rationality or in capacity for control, depending on the jurisdiction's test for insanity (Torres v. State, 585 S.W.2d 746 (Tex.Cr.App. 1979)).

Finally, a defendant who was involuntarily intoxicated may be able to argue that intoxication rendered him unconscious, thus negating proof of a voluntary act (R. v. Quick (1973) All E.R. 347). Generally this argument is not available for voluntary intoxication, as most courts hold the individual responsible for choosing to risk loss of consciousness (People v. Velez, 221 Cal.Rptr. 631 (Ct. App. 1985); but c.f. R. v. O'Connor ).

Conceptually distinct from involuntary intoxication is what has been called "settled insanity," a severe mental disorder that may result from heavy drinking over a long period and that may produce psychosis. Legally this condition falls under insanity, for the person suffers from a long-standing mental disorder not dependent on actual intoxication. Also to be distinguished are those individuals with significant mental problems who become intoxicated; their criminal responsibility should be analyzed under the rules of either voluntary intoxication or insanity based on underlying mental illness.

Samuel H. Pillsbury

Herbert Fingarette

Ann Fingarette Hasse

See also Actus Reus; Alcohol and Crime: Behavioral Aspects; Alcohol and Crime: The Prohibition Experiment; Alcohol and Crime: Treatment and Rehabilitation; Diminished Capacity; Drinking and Driving; Drugs and Crime: Legal Aspects; Mens Rea.

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