What is the intoxication defense? The criminal defense attorneys at Van Severen Law Office, S.C. explain:
Section 939.42 of the Wisconsin Statutes describes the intoxication defense – an affirmative defense to criminal liability based on the defendant’s involuntary intoxication. You’ve certainly seen something similar before in movies and television. The defendant wakes up in a jail cell and isn’t quite sure what happened. There’s some discussion about how the defendant got to this point. Was he slipped something? Or did he just get incredibly drunk on his own and doesn’t recall the night prior?
Whether the intoxication was voluntary or involuntary is an important question in both the movies and real life. Voluntary intoxication does not qualify for the defense. In other words, the defendant getting himself drunk isn’t enough to escape a conviction. But being slipped something opens the door to it. Only involuntary intoxication works.
Section 939.42 of the Wisconsin Statutes: Intoxication
Section 939.42 of the Wisconsin Statutes provides the intoxication defense. It says:
939.42 Intoxication. An intoxicated or a drugged condition of the actor is a defense only if such condition is involuntarily produced and does one of the following:
(1) Renders the actor incapable of distinguishing between right and wrong in regard to the alleged criminal act at the time the act is committed.
(2) Negatives the existence of a state of mind essential to the crime.
What do I need to know about the intoxication defense?
Step 1: Voluntary vs. Involuntary
Firstly, what does involuntary mean? Intoxication is involuntary when it’s induced by fraud or force on the part of a third person, or it was the result of the defendant’s mistake. Drinking a beer that was stronger than you expected does not qualify. Addiction to drugs or alcohol is not involuntariness under this statute.
In State v. Gardner, 230 Wis.2d 32, 601 N.W.2d 670 (Ct. App. 1999), the court held that the involuntary intoxication defense can apply where intoxication results from the effects of prescription drugs. The court declined to limit the defense to situations when the defendant did not know about the intoxicating effect of the medication. “Even if forewarned of the intoxicating effect of a prescription drug, a person should have recourse to the defense if the drug renders him or her unable to distinguish between right and wrong.” 230 Wis.2d 32, 41. However, “this does not include cases where a patient knowingly takes more than the prescribed dosage, or mixes a prescription drug with alcohol or other controlled substance. Neither would the defense be available to one who voluntarily undertakes an activity incompatible with the drug’s side effects.” 230 Wis.2d 32, 42.
If the intoxication is involuntary, we move to step 2. If it is voluntary, the defense does not apply.
Step 2: State of mind
Next, even if the condition was involuntary, it still needs to be shown that it was to such a degree that it rendered the defendant incapable of distinguishing right from wrong. In other words, the intoxication must have had such an effect on the individual that it changed his ability to recognize he was doing something wrong. This is obviously a subjective decision, and it is one that goes to the jury to decide.
Alternatively, the defendant needs to show that the intoxication negated the existence of a state of mind essential to the crime. Certain crimes require a state of mind to sustain a conviction. An example is the crime of theft. That crime requires that the defendant knew the victim did not consent to the taking of his property. If intoxication negates this state of mind, one of the essential elements of the crime is missing, and the defendant cannot be convicted.
The intoxication defense is not a simple and straightforward legal concept in Wisconsin. Whether the defense applies depends on a few circumstances. Contact Van Severen Law Office, S.C. immediately for help: (414) 270-0202.
Contact Van Severen Law Office to speak with one of Wisconsin’s best criminal defense lawyers about intoxication law:
Waking up without any recollection of the night before is a terrifying experience. If this experience occurs in a jail cell, it’s certainly an even worse situation.
If you’re facing criminal charges, hiring a top criminal defense attorney is an important first step. Exploring issues like intoxication is important, but many attorneys don’t understand certain basic affirmative defenses. At Van Severen Law Office, S.C., we focus our entire practice on defending individuals facing criminal charges. We don’t represent individuals in purely civil law cases. We don’t handle divorces. And we don’t write contacts for businesses. This all makes us better at defending individuals in your shoes. Importantly, we understand affirmative defenses and how they apply to your case.
Finally, we offer free consultations to anyone seeking representation from our firm. During that consultation you’ll have the opportunity to meet one of our lawyers to discuss how we can help. Contact us at (414) 270-0202 immediately to speak with our team.
