Intoxication as a Legal Defense in Nevada
(Explained by Las Vegas Criminal Lawyers)

really drunk man holding beer and cigarette

Involuntary and Voluntary Intoxication as a Nevada Legal Defense

It may surprise you to learn that being drunk or high is not an excuse for committing a crime in Nevada – even if you were so out of it you didn't know what you were doing.

In some cases, however, you may only be guilty of a lesser charge. Certain Nevada offenses (such as first-degree murder and burglary) require proof of motive to achieve a particular outcome. If you were too drunk to form the requisite intent, you may not be guilty of the charged crime (though you may still be guilty of a lesser offense).

And if you were involuntarily high (because, for instance, someone spiked your drink), you may be "not guilty by reason of temporary insanity."

To help you better understand when intoxication is a complete or partial defense to a crime, our Las Vegas, Nevada criminal defense lawyers discuss the following:

angry crazy man with raised forearm

1. Involuntary intoxication as a legal defense

Nevada courts have long recognized that a person is not liable for a crime committed as a result of involuntary intoxication.

Involuntary intoxication that excuses someone from his actions is treated as a form of legal insanity. If you were drunk or high involuntarily, your lawyer will usually have you plead not guilty by reason of insanity. This shifts the burden to the defense to prove that you were voluntarily intoxicated.1

Reasons why your intoxication might not be voluntary include:

  • You were drugged without your knowledge;
  • You were exposed to intoxicating chemicals (e.g., at work or through a chemical spill); or
  • Your drinking or drug use were caused by legal insanity and, therefore, not within your control.2

For the defense of temporary insanity to apply, however, the involuntary intoxication must have been so severe that you were unable to understand the nature of your actions. If you were still able to comprehend that what you were doing was wrongful, the fact that someone drugged you will not shield you from the consequences of your wrongful acts.

2. Voluntary intoxication as a legal defense

The more common situation is when someone commits a crime after voluntary ingestion of alcohol and/or drugs. This situation is specifically addressed by Nevada Revised Statutes 193.220.

Under Nevada law, intoxication is no excuse for failure to act as a reasonably prudent person would act. Even when you are intoxicated, you are held to the same standard of care as a sober person.3

2.1. When is intoxication considered voluntary?

Your intoxication will be considered voluntary if it results from you willing partaking of any intoxicating liquor, drug or other substance when you know that it is capable of an intoxicating effect or when you willingly assume the risk of that effect as a possibility.4

This is true even if you are so intoxicated that you would be considered temporarily insane but for the alcohol and/or drugs.5

2.2. Voluntary intoxication as a defense against motive or intent

While voluntary intoxication is not an excuse for committing a crime it may, however, be taken into account when determining intent.6 

NRS 193.220 provides:

No act committed by a person while in a state of voluntary intoxication shall be deemed less criminal by reason of his or her condition, but whenever the actual existence of any particular purpose, motive or intent is a necessary element to constitute a particular species or degree of crime, the fact of the person's intoxication may be taken into consideration in determining the purpose, motive or intent.

Certain crimes in Nevada require proof of intent to obtain a certain result by committing the crime. These are known as "specific intent" crimes. They contrast with "general intent" crimes, in which it doesn't matter whether you intended a certain result or had a particular motive.

With a general intent crime, the only "mens rea" (state of mind) required is that you intended to commit an act which the legislature has deemed criminal, or that you acted knowingly or with reckless disregard toward the risk inherent in your behavior.

Therefore, if a crime is a general intent crime, voluntary intoxication usually satisfies the intent requirement -- because you consumed alcohol and/or drugs knowing (or recklessly disregarding) the fact that doing so created a risk to others.

However, certain crimes require proof that you were actually motivated by the intent to cause a specific result. An easy to understand example is Nevada's first-degree murder law, which requires the premeditated intent to kill someone with "malice aforethought."

Other Nevada crimes that require proof of specific intent include:

  • Nevada attempted murder;
  • Nevada grand larceny;
  • Nevada robbery;
  • Nevada burglary; and
  • Nevada forgery.

It is important to note that most Nevada crimes are "general intent" crimes. This includes, quite specifically, Nevada's sexual assault laws. Voluntary intoxication, no matter how severe, is not a defense to rape.

And even with specific intent crimes, it is not enough for you to show that you were drunk or stoned. You must have been so drunk or stoned that you could not form the requisite intent, purpose or motive for the crime. This is a question for the jury.7

  • Example: Dennis has repeatedly threatened to kill his wife Jane if she leaves him. Jane finally gets up the nerve to tell Dennis she wants a divorce. Dennis, a habitual drinker, consumes half a bottle of whiskey to steady his nerves, then shoots Jane with a rifle. At his trial for first-degree murder, he testifies that he was intoxicated when he killed Jane. However, Dennis' use of an intoxicating substance to create sufficient courage to commit the crime will not mitigate the charge of first-degree murder. His prior behavior shows that his killing was willful, deliberate, and premeditated.8
  • However... Let's imagine that Dennis is a mild-mannered man who only ever drinks socially. He has never threatened his wife and, indeed, has been a loving husband. When Jane asks for a divorce, Dennis is distraught and begins drinking heavily. Dennis gets seriously drunk and provokes an argument with Jane, during which he pushes her. Without realizing it, he begins hitting her and beats her to death. Dennis' Nevada defense attorney can argue that his intoxication shows that Dennis killed Jane as the result of a serious and highly provoking "injury" sufficient to excite an irresistible passion in a reasonable person -- in other words, a "heat of passion" killing in violation of Nevada's "Voluntary Manslaughter" Law (NRS 200.050).

2.3. How do I prove I was too intoxicated to form intent?

The burden of proof is on you to show by a preponderance of the evidence that you were intoxicated to such an extent that you did not premeditate or deliberate.9

Ways you might show you were too intoxicated to form intent might include (but are not limited to):

  • Testimony by friends that you are not normally a heavy drinker or drug user;
  • Evidence that you were incoherent at the time of the crime; and/or
  • Lack of use of a deadly weapon to commit the crime.

3. Is a confession inadmissible if I was intoxicated?

Intoxication renders a confession inadmissible only if you were so intoxicated that you could not understand the meaning of your comments.10

If the police questioned you when you were extremely inebriated, you may not have realized you were confessing to a crime. Your criminal defense lawyer may be able to get your confession excluded by a Nevada motion to suppress the evidence.

If the motion is granted, not only will your confession be tossed out, but so will any other evidence the police would not have discovered but for the confession.

4. Related defenses (insanity and diminished capacity)

Nevada's legal insanity defense applies when, due to a disease or defect of the mind, the defendant did not know or understand the nature and capacity of his/her act or was unable to appreciate that his or her conduct was illegal. However, as noted above, if the defect occurred as the result of voluntary intoxication, the insanity defense is not available.

Involuntary intoxication, however, may be treated as temporary insanity under Nevada law if the intoxication was so severe as to render the defendant incapable of understanding the nature of his actions.

You may also have heard of the legal defense of "diminished capacity," which is recognized in some states. Diminished capacity is a lesser form of legal insanity. It permits a court to downgrade an offense or sentence if the defendant committed it while suffering from a significantly reduced mental capacity which contributed substantially to the commission of the offense.11 It applies, for instance, when a defendant suffers from developmental problems that allow him or her to recognize that an act is wrongful, even though he or she may fully comprehend why.

Nevada does not recognize diminished capacity as a legal defense. Federal law recognizes diminished capacity as a basis for reducing a sentence, but specifically excludes the application of the defense when the reduced mental capacity is caused by the voluntary use of drugs or other intoxicants.12

Did you commit a crime while intoxicated? Call us for help…

If you or someone you know has been charged with a crime in Nevada based on something you did while you were drunk or stoned, our Las Vegas criminal attorneys or Reno defense attorneys may be able to help.

Contact us for a free consultation to find learn whether involuntary or voluntary intoxication as a Nevada legal defense applies to your case.

To schedule your free consultation, call us at 702-DEFENSE (702-333-3673) or complete the form on this page. One of our compassionate Nevada criminal lawyers will get back to you promptly to discuss your case and the best defense to your Nevada criminal charges.

Legal references:

  1. See, e.g., United States v. Henderson (9th Cir. 1982) 680 F.2d 659.
  2. Same. (Defendant was charged with interference with a flight crew while drunk but claimed his actions stemmed from mental illness. The court held that the government failed to introduce evidence to rebut the defendant's claim that his drinking at the airport arose from mental illness and was not, therefore, voluntary. Thus the entire ensuing series of events was deemed to come about because of circumstances beyond the defendant's control.)
  3. Nevada Jury Instructions 5.09.
  4. Nevada Jury Instructions, Intoxication, #6.
  5. Andrade v. State, 1971, 483 P.2d 208, 87 Nev. 144.
  6. Nevada Jury Instructions, Intoxication, #4; State v. Arellano, 68 Nev. 134, 227 P.2d 963.
  7. State v. Bourdlais, 1954, 265 P.2d 761, 70 Nev. 233.
  8. Facts similar to State v. Butner, 1949, 206 P.2d 253, 66 Nev. 127, certiorari denied 70 S.Ct. 479, 338 U.S. 950, 94 L.Ed. 586, rehearing denied 220 P.2d 631, 67 Nev. 436, certiorari denied 71 S.Ct. 285, 340 U.S. 913, 95 L.Ed. 660.
  9. Nevada Jury Instructions, Intoxication, #16.
  10. Floyd v. State, 2002, 42 P.3d 249, 118 Nev. 156, rehearing denied, certiorari denied 123 S.Ct. 1257, 537 U.S. 1196, 154 L.Ed.2d 1033, denial of habeas corpus affirmed 178 P.3d 754, 122 Nev. 1673, application for writ of habeas corpus held in abeyance 2007 WL 1231734, denial of habeas corpus affirmed 2010 WL 4675234.
  11. See, e.g., United States Sentencing Guidelines (USSG) 5K2.13.
  12. Same.



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