Voluntary & Involuntary Intoxication as Defenses in Colorado

Voluntary intoxication – where you get drunk or high on purpose – can be a defense only to Colorado charges of “specific intent crimes.” These are offenses where the prosecutor has the burden to prove you had a certain goal, such as intent to kill, injure, threaten, or steal.

In contrast, involuntary intoxication – where you get drunk or high without your consent (such as from a spiked drink) – is a defense to both specific intent crimes and general intent crimes. This is because involuntary intoxication is less blameworthy than voluntary intoxication, and it is unfair for you to be liable for any criminal act while you were inebriated against your will.

The following table compares and contrasts voluntary and involuntary intoxication as a defense in Colorado.

	Voluntary Intoxication	Involuntary Intoxication
Definition	Intentional consumption of alcohol or drugs	Unintentional intoxication (for example, from a spiked drink or unexpected medication reaction)
Effect on Specific Intent Crimes	Can result in the charge getting dismissed or reduced	Can result in the charge getting dismissed or reduced
Effect on General Intent Crimes	Generally not applicable as a defense	Can result in the charge getting dismissed or reduced
Burden of Proof	Defendant must prove intoxication	Defendant must prove involuntary nature and resulting impairment
Sentencing Impact	May be considered as a mitigating factor	May be considered as a mitigating factor
Examples of Crimes It May Apply To	Burglary, theft, forgery, robbery	Assault, battery, kidnapping

Below, our Colorado criminal defense lawyers discuss the following frequently asked questions:

• 1. What is involuntary intoxication?
• 2. What is voluntary intoxication?
• 3. What is an affirmative defense?

1. What is involuntary intoxication?

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 they are doing so; or
2. another person forces or tricks the individual into consuming the intoxicating substance. 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 tend to cause intoxication; and
• the individual did not knowingly introduce or allow the substance to be introduced into the body unless due to medical advice or other appropriate circumstances.

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

What does a complete defense to the charges mean?

When a person is involuntarily intoxicated, and they can prove that defense by a “preponderance of the evidence,” they are not guilty of the crime charged against them.

Voluntary intoxication is only a partial defense (see section 2 below) and will not result in the 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?

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

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

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

What types of substances may cause intoxication?

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

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

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

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?

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.

The defendant must prove affirmative defenses 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.

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