Fri 19 Aug, 2022 Criminal Defense

Can Being Drunk Be a Defense?

Cody Warner NYC Criminal Lawyer Answers: Can Being Drunk Be a Defense?

Many people accused of committing crimes are charged with incidents that occurred when they were intoxicated by alcohol or drugs. It’s not uncommon for people to wake up in a jail cell and wonder what happened the night before. Although many people get intoxicated and don’t commit crimes or get arrested, some intoxicated people do things they otherwise wouldn’t do. Sometimes their behavior is simply risky, and sometimes it becomes criminal.

Given that some people were blacked out from intoxication and don’t remember the incident for which they were arrested, it’s natural to ask, “Can being drunk be a defense?”

Being drunk or intoxicated on drugs is never a complete defense to a case. In other words, if you commit a crime while intoxicated, you cannot avoid conviction solely by establishing that you were intoxicated.

However, your intoxication can be relevant as to whether a necessary element of the charge—typically a required mental state—is established. The prosecution is obligated to prove each element of your charge beyond a reasonable doubt. Consequently, if your intoxication affects whether a certain element is established, then your intoxication can in fact be used as a defense to the charge.

In cases where intoxication is relevant to a specific element of the charge, the judge will instruct the jury to consider whether your mind was affected by intoxicants to a degree that you were incapable of forming the mental state necessary for the crime to be established.

Most often, intoxication can be relevant to the elements of intent and knowledge. With crimes that include the element of intent or knowledge, evidence of the defendant’s intoxication can be considered by the jury to determine whether those elements are established.

Crime Elements that Intoxication Can Negate According to a NYC Criminal Lawyer

The elements of crimes that can most commonly be negated by intoxication relate to mental states. The most common relevant mental states are intent and knowledge.


A person’s intent is an element of most crimes. For example, with the intentional subdivision of Assault in the Third Degree (P.L. 120.00(1)), the prosecution must prove multiple elements, including intent. The prosecution must prove:

  • The defendant caused injury to another person; and
  • The defendant did so with the intent to cause physical injury.

A defendant’s intoxication may be relevant to the question of whether he intended physical injury. To be sure, intoxicated people can still intend to cause physical injury, but situations may exist where a person was so intoxicated that he was, for instance, flailing his arms and caused injury to another person even though he didn’t intend to cause injury. Or, a person could be so intoxicated that he fell over on someone, causing physical injury to that person, but he was simply intoxicated and did not act with the intent to cause physical injury.

Although a defendant’s intoxication is not a complete defense to a crime involving the element of intent, the jury may consider whether the defendant was so intoxicated that the necessary element of intent is not established. If the jury concludes that the element of intent is not established, then the crime is not proven and the jury should return a verdict of not guilty.


A person’s knowledge is an element of some crimes, and offenses with the element of knowledge can hinge on whether a person was intoxicated. For instance, the drug offense Criminal Possession of a Controlled Substance in the Seventh Degree (P.L. 220.03) is a crime that requires the prosecution prove multiple elements, including knowledge. The prosecution must prove:

  • The defendant possessed a controlled substance; and
  • The defendant did so knowingly and unlawfully.

A defendant’s intoxication may be relevant as to whether he knowingly possessed a controlled substance. Of course, if the defendant, while able-minded, purchased intoxicants and used them to the point that he blacked out, he can still be convicted for knowingly possessing the drugs because he knowingly possessed them before he became intoxicated from them.

However, if a defendant was at a club and became so intoxicated that he put on someone else’s jacket when he was leaving and then got stopped by the police, who found drugs in the jacket, the fact that he was intoxicated would be relevant for the jury to consider. The defendant’s intoxication could explain why he put on someone else’s jacket and could support a conclusion that he didn’t knowingly possess the drugs. In this example, his intoxication could also be relevant if he were charged with the theft crime of Petit Larceny (P.L. 155.25), since he accidentally took another person’s jacket due to his intoxication, which could negate the necessary element that he intended to steal the property.

Important Examples Where Intoxication Doesn’t Apply

Although intoxication can be used as a defense strategy when working with a NYC criminal lawyer for cases where it can negate the elements of intent or knowledge, intoxication cannot be used to defend against certain charges.

Intoxication is not a defense nor will negate elements of a Driving While Intoxicated (V.T.L. 1192) charge. Notably, DWI/DUI charges do not involve an element of intent. The prosecution does not have to prove that you intended to drive while intoxicated; they must simply prove that you drove while you were intoxicated. So, if you were black-out drunk and don’t even remember driving your vehicle, it’s not a defense that you were so drunk that you couldn’t have formed the intent to drive. Your intoxication in this scenario will not help whatsoever and will only be used against you by the prosecution.

Crimes that involve the element of recklessness instead of the element of intent cannot be successfully defended by establishing that the defendant was intoxicated. For example, if a person is charged with the reckless subdivision of Assault in the Third Degree (P.L. 120.00(2)), their intoxication cannot be used as a defense.

What Must a NYC Criminal Lawyer Show to Establish Intoxication

The judge must instruct the jury to consider a defendant’s intoxication if there is sufficient evidence on the record for a reasonable person to entertain a doubt as to whether a certain element (typically intent or knowledge) is established.

Evidence that is sufficient for the judge to instruct the jury about intoxication includes evidence of the defendant consuming intoxicants before the incident. Objective proof, such as a toxicology report or psychiatric report, is not required for the court to instruct the jury to consider a defendant’s intoxication. However, a mere assertion by the defendant that he was intoxicated—without some form of corroboration—is typically insufficient for the judge to instruct the jury to consider a defendant’s intoxication.

Charged with a Crime While Under the Influence? Speak with NYC Criminal Lawyer, Cody Warner Today

If you have been charged with a crime for an incident that occurred when you were intoxicated, you may have defenses available for your case. Cody Warner is an experienced NYC criminal lawyer who can assess your case to determine the best strategy for moving forward. Call or email him today for a free consultation.