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.
Below, our Colorado criminal defense lawyers discuss the following frequently asked questions:
- 1. What is involuntary intoxication in Colorado?
- 2. What is voluntary intoxication in Colorado?
- 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:
- an individual consumes alcohol, drugs, or some other intoxicating substance without knowing he or she is doing so; or
- 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 him or her 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 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:
- intimidation, or
What types of substances may cause intoxication?
Substances that may cause voluntary intoxication include but are not limited to:
- illegal drugs (e.g., LSD, marijuana, cocaine, heroin)
- prescription drugs (e.g., 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 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.
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.
- People v. Grenier, 200 P.3d 1062 (2008) (“In contrast, involuntary intoxication is intoxication which is “not self-induced,” see § 18–1–804(3), C.R.S.2007, and can occur when a person takes a substance pursuant to medical advice, does not know that he or she is ingesting an intoxicant, or ingests a substance which is not known to be an intoxicating substance.”).
- CRS 18-1-804 (Intoxication).
- Same as 2.
- WebMD. What is Substance Abuse?
- CRS 18-1-804(1).