“Defense” of Intoxication

Suppose a person goes out for a night of heavy drinking. After the 10 or 11th shot, he blacks out. He then wakes up the next morning in a jail cell. He has absolutely no idea where he is or what is going on. He is then informed by a police officer that he punched a random cop in the street and caused him to have a bloody nose. The officer tells him that he is going to be charged with Assault in the Second Degree for causing physical injury to a police officer. The maximum period of incarceration for this crime is seven years in prison. The person is horrified at what he is accused of doing and is scared that he is going to go to prison. The question is, to what extent can he use his intoxication as a defense? Suppose he was really intoxicated and he genuinely has no recollection about the incident. So legally, how does this play out?

The answer is somewhat complicated. Pursuant to New York law, intoxication is not a defense to a criminal charge. So you won’t beat the case by saying the reason you committed the crime was solely because you were intoxicated. And even if it is true, you also can’t argue that you never even would have dreamed of engaging in the criminal behavior if you weren’t intoxicated at the time. Despite this though, evidence of intoxication “…can be considered whenever it is relevant to negative an element of the crime charged.” What this basically means is that a jury can consider the specific intoxicants’ affect on the defendant’s mind in determining whether the person had the requisite intent necessary to be guilty of the crime. So, in the hypothetical listed above, the cop puncher can argue that he was so intoxicated that he was not able to form the requisite intent necessary to be guilty of Assault in the Second Degree. Here’s how this plays out in a trial…

The cop testifies that the defendant was urinating on the street at 4 am and when he tried to give him a summons, the defendant punched him in the face and tried to run away. The officer then arrested the defendant. On cross-examination, the defense attorney asks the cop a series of questions relating to whether the defendant was intoxicated. The cop agrees that he was incredibly intoxicated. The defendant then testifies that he was very drunk and has no recollection of the incident. He also estimates how much he remembers drinking prior to blacking out. An expert on alcohol’s affect on the human body then testifies and estimates that based on the defendant’s memory regarding how much he drank, at the time of the incident someone with his height and weight would probably have a blood alcohol level of .32. This is 4 times the legal limit to drive. After the defense and prosecution give their closing statements, the judge instructs the jury on the law. First, with regard to Assault in the Second Degree, he tells them that the government needs to prove the following two elements beyond a reasonable doubt for the jury to convict the defendant, they need to prove: (1) the defendant caused physical injury to a police officer and (2) the defendant did so with the intent of preventing him from performing a lawful duty. Then because there was testimony regarding the defendant’s intoxication, the judge says the following to the jury: “…in determining whether the defendant had the requisite intent necessary to commit the crime of Assault in the Second Degree, you may consider whether the defendant’s mind was affected by intoxicants to such a degree that he was incapable of forming the intent necessary for the commission of that crime.” So here, the argument made by the defense attorney would be that the defendant was so drunk that he was incapable of forming the necessary intent, which was that his actions were meant to stop the police officer from performing a lawful duty (here, issuing a summons for public urination). A common way prosecutors try to beat this argument is by having the officer testify to conscious things the defendant said or did when he was arrested. For example, if the defendant said something like “you’re not giving me a ticket, I hate cops” or if he carefully zipped up his pants before running away, it’ll be harder to claim he was so drunk that he couldn’t form the requisite intent. On the other hand, if he was yelling gibberish at the top of his lungs and said things that made no sense like, “I hate birds named Daniel” then he might prevail. An important thing to note though is that the fact that the defendant has no recollection of the incident is largely irrelevant.

So that’s how the law works. Not surprisingly, the answer as to whether someone would prevail in these circumstances is “it depends.” But despite the prevalence of incidents like this happening, it is usually difficult to prevail.