Voluntary and involuntary intoxication are both possible legal defenses in California criminal cases. If successful, the defenses may work to get a criminal charged reduced or even dropped altogether. Defendants should consult with an experienced criminal defense lawyer to learn whether these defenses are available for their particular crimes or criminal cases.
“Voluntary intoxication” is when a person willingly uses any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect. The condition is a valid legal defense only in cases involving “specific intent crimes,” or those crimes where a person acts with a specific intent to commit a criminal act (for example, in murder cases where a defendant specifically intends to kill someone).
“Involuntary intoxication” is when someone unknowingly consumes an intoxicating substance or does so because of another person’s force or trickery. The condition is a complete defense in criminal cases, meaning that an accused can raise it to contest basically any criminal charges.
Our California criminal defense attorneys will highlight the following in this article:
- 1. How does the voluntary intoxication defense work?
- 2. When can involuntary intoxication work as a defense?
- 3. What are some related defenses?
1. How does the voluntary intoxication defense work?
Penal Code 29.4 is the California statute that sets forth the legal defense of voluntary intoxication.1
Criminal defendants can assert this defense in cases that involve a specific intent crime. The defense allows a defendant to:
- introduce evidence of his/her “voluntary intoxication,” and
- do so in order to show that he/she did not have the “specific intent” to commit a crime.2
Questions often arise in discussions of this defense with the ideas of:
- voluntary intoxication, and
- specific intent crimes.
1.1. Voluntary intoxication
For purposes of this statute, “voluntary intoxication” means that a person voluntarily consumed something that had an intoxicating effect.
In other words, this type of intoxication includes the voluntary ingestion, injection, or taking by any other means of any:
- intoxicating liquor,
- drug, or
- other intoxicating substance.3
1.2. Specific intent crimes
The defense of voluntary intoxication does not eliminate all criminal liability in every possible type of criminal case.4
The defense is only available in cases involving specific intent crimes (as opposed to general intent crimes).
A specific intent crime is one where the defendant must both:
- intend to commit an unlawful or criminal act, and
- specifically intend to violate the law.5
A criminal defendant typically acts with a specific criminal intent if he/she has a specific mental state or state of mind to act with a specific purpose (for example, to act with an intent to defraud someone). This purpose, or the requisite intent, is typically given in the statute or code section governing the crime or criminal offense that is the subject of a case.
Examples of specific intent crimes include:
- theft (where a defendant must specifically act with the intent to deprive a property owner of his/her property),
- murder (where a defendant must specifically act with the intent to kill someone), and
- forgery (where a defendant must specifically act with the intent to defraud or deceive another person).
In contrast, a general intent crime is one where the defendant performs some physical act. To secure a conviction of these crimes, a prosecutor does not have to show that the accused acted with a specific “mens rea,” or a particular mental state.6
A common example of a general intent crime is driving under the influence (DUI). A person is guilty of the offense as long as he/she drove a vehicle while drunk. The prosecutor does not have to show that the motorist actually intended to drive drunk or drove drunk willingly or with a specific purpose.
2. When can involuntary intoxication work as a defense?
Under California criminal law, involuntary intoxication is a complete defense to a crime. This means that an accused cannot be found guilty of any crime that he/she committed while involuntarily intoxicated.7
In general, people are “involuntarily intoxicated” if either of the following occurred:
- they consumed alcohol, drugs, or some other intoxicating substance without knowing they were doing so, or
- somebody forced or tricked them into consuming an intoxicating substance.8
The classic instances of involuntary intoxication occur when someone:
- drinks a punch they believe to be nonalcoholic but that is actually spiked with liquor, or
- eats brownies not knowing they are laced with marijuana.
Example: James goes over to his friend’s house for beer. His friend puts the drug LSD in James’s beer without telling him.
Under the influence of LSD, James gets into a fight with a bouncer at a bar and ends up shooting him. Here, James may be able to beat any potential murder or manslaughter charges because he was under the influence of a drug he never intended to consume (even though he did intend to drink alcohol).
For more on the above example, see the legal case of People v. Cruz.9
Note that while the involuntary intoxication defense works as a valid defense in most cases, there are some limitations to its operation.
2.1 Limitations on the defense
Most jurisdictions do not allow an involuntary intoxication defense if a defendant thought he/she was consuming one illegal drug (like marijuana) but in fact was consuming another (like cocaine).10
Further, California courts do not allow the defense of involuntary intoxication to be used just because someone is an alcoholic, even though alcoholics can argue that their addiction makes it so that they have no choice but to drink.11
3. What are some related defenses?
There are three defenses related to a defendant’s intoxication. These include:
- mistake of fact, and/or
The legal defense of involuntary intoxication is a subset of the legal defense of unconsciousness.
As with involuntary intoxication, unconsciousness is a complete defense to criminal charges. A defendant can raise the defense if he/she committed a crime while in the state of being unconscious.12
Note that a person is considered legally “unconscious” even if they are able to move around.13 The defense also applies to people who are unconscious for other reasons beyond drug and alcohol use, including when people commit an offense while:
- experiencing a blackout, or
- experiencing an epileptic seizure.14
3.2. Mistake of fact
The legal defense of mistake of fact means that a defendant is usually not guilty of a crime if he or she made a reasonable mistake about certain key facts, and therefore did not have the required criminal intent to commit an offense.15
There is a direct connection between the mistake of fact defense and the involuntary intoxication defense in certain cases. Normally, for the mistake of fact defense to apply, the defendant’s mistake must have been reasonable.16 But an unreasonable mistake can be a valid legal defense too, provided that the defendant made the unreasonable mistake only because he/she was involuntarily intoxicated.17
The insanity defense is a valid legal defense provided that a defendant was legally insane at the time he/she committed a crime.18
A defendant is “legally insane” if he/she has a mental disease or defect that makes it so that he/she either:
- does not understand the nature of his/her criminal act, or
- cannot distinguish between right and wrong.19
It might sound like someone who is under the influence of drugs or alcohol could fit this description. But note that intoxication is legally distinct from insanity. A person is not legally insane just because he/she was under the influence of drugs or alcohol.20
Addiction to drugs or alcohol also does not count as legal insanity. This is true even if the defendant suffers from brain damage or a permanent mental disease as a result of his or her past use of drugs or alcohol.21
- California Penal Code 29.4 PC.
- See same. See also People v. Reyes (1997) 52 Cal.App.4th 975; and, People v. Mendoza (1998) 18 Cal.4th 1114.
- California Penal Code 29.4c PC. See also CALCRIM No. 3426 – Voluntary Intoxication, Judicial Council of California Criminal Jury Instructions (2020 edition).
- Note that voluntary intoxication is not an affirmative defense to a crime, but a jury may consider evidence of voluntary intoxication and its effect on the defendant’s required mental state. See People v. Mendoza (1998) 18 Cal.4th 1114.
- Black’s Law Dictionary, Sixth Edition (“Specific Intent Crime”). See also U.S. v. Birkenstock, 823 F.2d 1026 (1987).
- To reiterate, voluntary intoxication is not a defense in cases involving a general intent crime. See People v. Atkins (2001) 25 Cal.4th 76.
- California Penal Code 26 PC.
- See CALCRIM No. 3427 – Involuntary Intoxication, Judicial Council of California Criminal Jury Instructions (2020 edition). See also People v. Velez (1985) 175 Cal.App.3d 785. See also People v. Saille (1991) 54 Cal.3d 1103.
- People v. Cruz (1978) 83 Cal.App.3d 308.
- See, for example, People v. Velez (1985) 175 Cal.App.3d 785.
- See, for example, People v. Wyatt (1972) 22 Cal.App.3d 671.
- CALCRIM No. 3425 – Unconsciousness, Judicial Council of California Criminal Jury Instructions (2020 edition).
- See same.
- See same.
- CALCRIM No. 3406 – Mistake of Fact. Judicial Council of California Criminal Jury Instructions (2020 edition).
- See same.
- See, for example, People v. Scott (1983) 146 Cal.App.3d 823.
- California Penal Code 25 PC.
- CALCRIM No. 3450 – Insanity: Determination. Judicial Council of California Criminal Jury Instructions (2020 edition).
- See same.
- California Penal Code 25.5 PC.