Going out and drinking a few beers before committing a crime probably isn’t going to be enough for you to raise the intoxication defense. And in most cases, the intoxication defense won’t be used for drunk driving cases. That’s because voluntary intoxication is no longer a defense in Wisconsin. Instead the affirmative defense focuses on involuntary intoxication. Section 939.42 of the Wisconsin Statutes provides:
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:
The plain language indicates that intoxication is only a defense if it is involuntarily produced. There are two ways it applies. One focuses on intoxication to the level that it causes the defendant to be unable to distinguish between right and wrong in regarding to a criminal act. The other scenario negatives the existence of a state of mind essential to the crime.
First, 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. If we can’t satisfy the first step, the defense doesn’t apply. It must be involuntary.
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. Sometimes the ability to distinguish right from wrong is analogized to the test to determine whether someone suffers from a mental disease or defect.
Rather than showing the defendant couldn’t understand right from wrong, the other scenario involves negativing 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 operating a vehicle without the owner’s consent. That crime requires that the defendant knew the victim did not consent to the taking of his vehicle. If the involuntary intoxication changes the defendant’s belief about whether he had consent to take the vehicle, the defense may apply.
If you’ve been charged with a crime we believe it’s best that you handle the situation with an experienced criminal defense attorney at your side. Other attorneys who don’t focus entirely on criminal defense may not recognize that a defense like intoxication applies. If that attorney spends half of his working hours focusing on divorce or business law, that’s half of the time that he isn’t focusing on criminal law. We believe in dedicating our firm to only criminal defense so we can provide you the absolute best defense. Don’t waste your time with someone who can’t provide that. Instead, contact a top criminal defense attorney like you’ll find at our firm.
Call Van Severen Law Office at (414) 270-0202 if you’re seeking a criminal defense attorney dedicated to achieving positive results or if you simply have questions about the intoxication defense.