Posted: July 3, 2017
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The Dubious Defense of Intoxication

It probably comes as no surprise that quite often those accused of criminal conduct were under the influence of alcohol or drugs at the time of their alleged crimes. It may, however, surprise you that the New York Penal Law specifically provides for a possible defense of intoxication to someone charged with breaking the law. Penal Law §15.25 states: “Intoxication is not, as such, a defense to a criminal charge; but in any prosecution for an offense, evidence of intoxication of the defendant may be offered by the defendant whenever it is relevant to negative an element of the crime.” Does this mean that when someone is charged with a crime their offense is excused by the law if they were drunk when they committed it? Far from it. In fact, the defense of intoxication is hardly ever successful due to both the language of the law and common sense policy considerations.

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Defense of Intoxication

First off, whenever a defendant is considering raising the defense of intoxication, an experienced criminal defense attorney must determine if it is even relevant or applicable to the certain crime their client is charged with committing. Notably, Penal Law §15.25 specifies that evidence of intoxication can only possibly be put forth “to negative an element of a crime.” Practically speaking, this means that intoxication would only be relevant to negate a person’s mental intent when committing a criminal act. That is, intoxication can only be raised in an attempt to prove that the defendant did not have the capability to form the necessary criminal intent of a particular crime; essentially to show that the defendant was so drunk that he didn’t know what he was doing or intend for the act to happen.

Because intoxication can only be raised with specific intent crimes; that is crimes where the perpetrator has to intentionally commit the criminal act, intoxication cannot be raised for crimes that require only that a person acts recklessly or for general intent crimes. For example, intoxication cannot be raised where a person recklessly causes the death of another person (e.g. – Manslaughter) or for crimes where a specific intent is not required (e.g. – Driving While Intoxicated).

This limitation on the defense of intoxication makes sense from a policy standpoint, as to allow intoxication to excuse criminal conduct would only encourage people to get drunk and commit crimes, knowing that they will not face punishment because they first got drunk before committing a crime. One appeals court in New York summarized this nicely in stating “there is no social or penological purpose to be served by a rule that permits one who voluntarily drinks to be exonerated from failing to foresee the results of his conduct if he is successful at getting drunk.” This same principle holds true for general intent crimes like DWI. After all, in order to commit a DWI one first has to get intoxicated either before or at the time of driving. No reasonable person would support the law excusing drunk driving because the person was drunk. Their intoxication was a likely result from drinking a significant amount of alcohol.

Defense of Intoxication – Success in trial is remote

Even if the defense of intoxication is relevant and applicable in a particular case, its likelihood of being successful at trial is remote at best. Numerous courts in New York have held that the level of intoxication in the defendant must rise to the level of “mania.” That is, the person must be drunk to the level of total oblivion. Practically speaking, if somebody is able to reach that severe level of intoxication they are usually physically unable to move, let alone commit a crime.

Assuming that a defendant can set forth sufficient evidence that they were intoxicated at the time a crime was committed, the result is simply an instruction from a judge to the jury that they may consider the evidence. The jury is by no means required to accept the defense. Furthermore, particularly when the defendant is charged with committing an intentional, violent felony, a jury is highly unlikely to excuse the conduct because the defendant first got drunk before committing the crime.

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If you are facing a criminal charge and were intoxicated at the time, it is important to discuss this fact with an experienced criminal defense attorney. While the formal defense of intoxication may not be a sound strategy, an attorney may be able to explain this to a prosecutor or court in a manner that could benefit you in receiving a favorable outcome.