Voluntary & Involuntary Intoxication as a Legal Defense in Colorado Criminal Law

Colorado law recognizes voluntary and involuntary intoxication as a legal defense to criminal charges.

The defense of involuntary intoxication is a complete affirmative defense to criminal charges. Involuntary intoxication occurs when:

• an individual consumed alcohol, drugs, or some other intoxicating substance;
• without knowing he or she was doing so; or
• another person forced or tricked the individual into consuming the intoxicating substance.

To be “involuntary,” the drunkenness or “high” must not be self-induced, meaning:

• the intoxication was not caused by substances the individual knows or ought to know have the tendency to cause intoxication; and
• the individual did not knowingly introduce or allow the substance to be introduced into the body unless as a result of medical advice or other appropriate circumstances.

Voluntary Intoxication

Voluntary intoxication means an individual willingly introduces into his or her body substances he or she knows or ought to know will cause intoxication and is “self-induced.”

This defense is not a complete defense against criminal charges. Instead, it is an affirmative defense. This means the defendant may raise voluntary intoxication as a defense when the evidence of intoxication contradicts the existence of specific intent when said intent is an element of the crime charged.

When an accused person successfully uses this defense, it may lower the charges against him or her but will not result in the dismissal of charges.

Affirmative Defenses

Each of the above defenses is considered an “affirmative defense.” An affirmative defense is an argument made by the defendant that — despite the fact the crime charged did occur — circumstances exist to void the criminal conduct in full (for example, charges are dismissed) or in part (for example, charges are reduced to less serious offenses).

Affirmative defenses must be proved by the defendant by a preponderance of the evidence. This standard is a lesser standard between it and the standard accorded to the prosecutor to prove guilt, which is the standard of innocent unless proven guilty beyond a reasonable doubt.

Below, our Colorado criminal defense lawyers discuss the following frequently asked questions about voluntary and involuntary intoxication for Colorado residents:

• 1. What is involuntary intoxication in Colorado?
  • 1.1 What if I was the person who consumed the substance?
  • 1.2 What does a complete defense to the charges mean?
• 2. What is voluntary intoxication in Colorado?
  • 2.1 What types of substances may cause intoxication?
  • 2.2 Is it a complete defense against criminal charges?
• 3. What is an affirmative defense in Colorado?

1. What is involuntary intoxication in Colorado?

The defense of involuntary intoxication is a complete affirmative defense to criminal charges. Involuntary intoxication can materialize under two different circumstances:

1. an individual consumes alcohol, drugs, or some other intoxicating substance without knowing he or she was doing so; or
2. another person forces or tricks the individual into consuming the intoxicating substance. ¹

1.1 What if I was the person who consumed the substance?

To be involuntary, the drunkenness or high must not be self-induced, meaning:

• the intoxication was not caused by substances the individual knows or ought to know have the tendency to cause intoxication; and
• the individual did not knowingly introduce or allow the substance to be introduced into the body unless as a result of medical advice or other appropriate circumstances.

If a person consumes prescription drugs that cause the person to become unexpectedly “high” and which then causes him or her to act criminally, this may still be a complete defense to the criminal charges.

1.2 What does a complete defense to the charges mean?

When a person is involuntarily intoxicated, and he or she can prove that defense by a “preponderance of the evidence,” he or she is not guilty of the crime charged against him or her.

Voluntary intoxication is only a partial defense (see section 2, below) and will not result in dismissal of the charges. Involuntary, on the other hand, means you were not responsible for your actions.

Example: John is at a party, but is drinking responsibly, choosing to have only one beer and wait three hours before driving home. However, Lacy thinks it would be funny to drop some LSD (a hallucinogenic drug) into his beer without John’s knowledge. John drives home high, drives recklessly, and kills a couple out for a midnight stroll walking on the sidewalk. John is charged with Vehicular Homicide. He can argue that the reason for his driving was the intoxication, which was not his fault and occurred without his knowledge. If proven and believed, he would be not guilty of the crime.

2. What is voluntary intoxication in Colorado?

Voluntary intoxication refers to the situation where an individual willingly introduces into his or her body substances he or she knows, or ought to know, will cause intoxication; and it is self-induced.³

The individual must choose to put the substance in his or her body as a result of free will, not by:

• trick
• deceit
• force
• intimidation, or
• coercion.

2.1 What types of substances may cause intoxication?

Substances that may cause voluntary intoxication include but are not limited to:

• beer
• liquor
• illegal drugs (e.g., LSD, marijuana, cocaine, heroin)
• prescription drugs (e.g., Vicodin, oxycodone), or
• over the counter drugs (e.g., cough syrup, allergy medicine), particularly when used in a way to get high.⁴

Many others exist, and if a person chooses to purposely get drunk or high and commit a crime, it is not a complete defense to a criminal charge.

2.2 Is voluntary intoxication a complete defense against criminal charges?

Voluntary intoxication is a defense, but it is not a complete defense against criminal charges. Evidence of intoxication may be:

• offered by the defendant;
• when it is relevant to contradict the existence of specific intent;
• if such intent is an element of the crime charged.

This defense only negates the “specific intent” element of a specific intent crime. In effect, this may reduce the charges against the accused.

Example: Sally is charged with the first-degree murder of Anne. First-degree murder requires a “deliberate and premeditated killing of another with malice aforethought.” It also carries penalties of life imprisonment or even death. However, Sally was incredibly high on cocaine that night and argues that she was too intoxicated to form the specific intent to plan the murder. Instead, she argues that her charges should be reduced to second-degree murder, as she could not have pre-planned the killing.

3. What is an affirmative defense in Colorado?

Each of the defenses above is considered an “affirmative defense.” An affirmative defense basically means the defendant can argue circumstances existed to negate the criminal conduct in full (resulting in the dismissal of the charges) or in part (resulting in the reduction of the charges to a less serious offense) even though the crime charged did occur and was committed by the defendant.

Affirmative defenses must be proved by the defendant by a preponderance of the evidence. This standard is a lesser standard than what the prosecutor must prove, which is the standard of innocence unless proven guilty beyond a reasonable doubt.

Call us for help…

For questions about the defense of involuntary and voluntary intoxication or to confidentially discuss your case with one of our skilled Colorado criminal defense attorneys, do not hesitate to contact us.

We represent clients in and around Denver, Colorado Springs, Aurora, Fort Collins, Lakewood, and several nearby cities.

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