Re-Blog #8: But I was drunk?

Originally Posted: Mar. 15, 2013 - http://batchelorstammlaw.com/2013/03/but-i-was-drunk/

But I was drunk? The intoxication defence.

So you’re charged with a crime, and you would have never done it if you weren’t drunk. Or maybe you don’t even remember it happened because you were so drunk. Is that some kind of defence? The booze made me do it?

The short answer is no. The long answer is maybe, but only in very limited circumstances. The intoxication defence can be used in two scenarios:

(1) Intoxication – You were really, really drunk, and the crime your charged with is complicated and would require an ability to plan or reason that you just couldn’t have had because you were so incredibly drunk;

(2) Intoxication akin to automatism – You were absurdly drunk. That is to say, drunk beyond all reason. So drunk that you were effectively a zombie and couldn’t even appreciate that swinging your arm might make it hit something. While being this drunk you committed a crime that didn’t result in anyone getting physically hurt.

Intoxication

This is an old common-law defence that works by taking away the mental element of the crime.

As you know from reading my other excellent articles, crimes are broken down into elements. For example assault is usually broken down as the intentional, physically voluntary, touching, of another person, without that persons consent. One of those elements, “intentional” is the mental element, or Mens Rea (MR), or more dramatically the ‘guilty mind’. Most crimes have an MR element that ensures you’re not convicted of doing something bad, unless you meant to do it.

Some crimes like assault have a simple MR like intending to touch someone. We call those general intent offences. Other crimes have a more complicated MR where you do one thing hoping to bring about another, these are called specific intent offences. An example of a specific intent offence is robbery where you do the first thing, hurting or threatening someone in order to accomplish something else, to steal their stuff.

The point of this is that intoxication can be a defence to a specific intent crime if you were so drunk that you couldn’t have possibly had the end goal in mind. So for example you were so drunk when you hit that guy that you couldn’t possibly have been thinking that hitting him would make him give you his wallet. If that was the case you would be not-guilty of robbery, but you would still be guilty of assault.

The bottom line is this. If your charged with a crime that involves some larger plan (a specific intent offence), and you were so stinking drunk there’s no way you could have had that plan, then you may have a defence.

Intoxication akin to Automatism

If you are charged with a simple crime that doesn’t require ulterior motives (ie. a General Intent offence), there is still a vague possibility your drunkenness could be a defence.

This only comes up if you were so incredibly drunk you can’t tell up from down; you had the mental capacity of a potato; you didn’t understand that swinging your arm might result in hitting the guy next to you. Okay, I’m belaboring the point and those are hardly sophisticated legal tests, but suffice it to say you have to be absurdly drunk and you’ll need expert doctors to come in and talk about how drunk you were.

In addition to being that drunk the crime also has to be one where nobody got hurt. Any situation where somebody got assaulted, sexually assaulted, wrongfully touched, kicked, hit, burned, knocked down, etc… is out. Getting yourself drunk isn’t a defence to those crimes, ever.

Now there is one minor wrinkle here and that’s if you weren’t the one who got yourself drunk. And I don’t mean it was an accident, or your girlfriend made fun of you 'till you agreed to drink. I mean if gangsters held you down and forced meth into your mouth... If that happened and you ended up going out and hurting someone you may have a defence. However, short of gangsters holding you down and forcing you to do drugs, there is no intoxication defence to a general intent offence where somebody gets hurt.

The bottom line here is that this defence is so rare it almost never comes up, but in theory if you committed a general intent offence where nobody got hurt and you were so drunk you didn’t know what you were doing you may have a defence.

In Conclusion

My advise to you, is not to get drunk and commit crimes. If it’s too late and you did get drunk and commit a crime, then being drunk part is probably not much of a defence. To be safe though you have to ask yourself

(a) how drunk were you?
(b) and how complicated was the crime?

If the answer is very drunk, and a bit complicated, then you may have a defence.

If the answer is insanely drunk, and dead simple, but nobody got hurt, then you may have a highly impractical defence.

Otherwise your drunkenness doesn’t excuse the crime, it just goes to how bad the crime was and how harsh your sentence should be.

Article authored by:

Cody Walker, Law Student, CD, AA – about the author