Is the Consumption of Alcohol a Defense to a Colorado Criminal Charge?

Voluntary Intoxication by Denver Colorado Criminal Defense Lawyer – H. Michael Steinberg

The law in Colorado -as recently re-affirmed by the Colorado Appellate Courts – states that ” [w]here the evidence supports an intoxication defense, it is appropriate for a trial court to instruct on that defense.

As a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor.”

Under Colorado Law

Intoxication of the accused is not 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 when it is relevant to negative the existence of a specific intent if such intent is an element of the crime charged. § 18-1-804, C.R.S. (2009).

The Colorado Courts have decided that voluntary intoxication is not an affirmative defense completely absolving a defendant of criminal liability;

…. rather, it is a partial defense that, under appropriate circumstances, negates the specific intent necessary to carry out certain offenses.

Therefore, a criminal defendant who successfully introduces evidence of voluntary intoxication may circumvent conviction for a more serious specific intent crime while remaining liable for a lesser included general intent offense.

An Example of a Specific Intent Crime – First Degree (Premeditated) Murder

If accepted by a jury, a voluntary intoxication defense would relieve a Defendant of liability for the specific intent crime of first degree murder and result in conviction for the general intent crime-and lesser included offense of second degree murder.

The Historical Background of the Voluntary Intoxication Defense

Substance abuse has existed since at least the beginning of recorded history, and crime has often followed substance abuse. Yet, until relatively recent times, a criminal defendant who acted while under the influence of intoxicating substances could not rely on intoxication as a defense if
in the eyes of the law, the person had voluntarily induced his or her condition.

Until the early to middle part of the nineteenth century, both the English and American criminal law rejected “voluntary intoxication” as a defense to crime. Indeed, some ecclesiastic and common law authorities condemned drunkenness as an evil in itself and treated it as a factor aggravating the crime with which the defend ant was charged.

The courts took the position that intoxication was relevant only if it rendered the defendant insane at the time of the offense. Absent such a showing, an intoxicated person was considered as culpable for his or her actions as someone who acted while stone sober.

Around the turn of the twentieth century courts began to follow the lead of other jurisdictions and recognize the relevance of intoxication beyond issues of sanity.

Elements of the Defense

Courts have often stated, voluntarily induced intoxication does not excuse criminal behavior.
Rather, as discussed in the preceding section, voluntary intoxication is a negating defense. It prevents the prosecution from proving the elements of the crime, and thus the crime
itself, by raising a reasonable doubt about whether the defendant acted with the state of mind required for conviction.


The courts have had little difficulty identifying the potential causes of intoxication for purposes of the voluntary intoxication defense. From its earliest decisions recognizing the defense, Courts have accepted that intoxication can result from the use of any drug, not just the use of alcoho1.

Further, the impairing substance can be a legal or an illegal one. It is not so simple, however, to define the degree of intoxication necessary in each case. Because voluntary intoxication
is a negating defense, the degree of intoxication required in a given case will depend on the mental elements of the offense the prosecution is trying to prove.

For example, first-degree murder requires proof beyond a reasonable doubt that the defendant acted with the mental state of premeditation and deliberation. In that context, intoxication
means no more than that the defendant, by reason of his or her ingestion of alcohol or other drugs, was unable to premeditate or deliberate-or at least, that the evidence raises a reasonable doubt about whether the defendant could premeditate or deliberate.

This definition of intoxication is legally precise, but provides little guidance about the actual degree of intoxication needed to negate criminal intent. The best, and perhaps only, way to assess the degree of intoxication required by the courts is to look at cases involving questions about the sufficiency of the evidence.

Such issues generally arise when a court decides:

  • whether the evidence warrants submitting the defendant’s claim of voluntary intoxication to the jury and
  • whether the evidence warrants dismissing the case altogether because the prosecution cannot prove a required mental element of the offense.

The standards for the two inquiries differ, but in both settings the court has had to weigh the quantity and quality of evidence offered by the parties. The cases therefore illustrate, at least in broad strokes, the types of evidence manifesting intoxication within the meaning of the voluntary intoxication defense.

The relevant inquiry was whether the defendant’s intoxication undermined his ability “to think out beforehand what he intended to do and to weigh it and understand the nature and consequence of his act.” The courts require that there had to be some evidence tending to show that the defendant “had temporarily, at least, lost the capacity to think and plan. “


The issue of voluntariness is central to an understanding of the potential defenses that may be based on intoxication. For example, if a person’s intoxication is considered involuntary, the person may be able to rely on the defense of involuntary intoxication, which is more favorable to defendants in some respects and less favorable in others than the defense of voluntary intoxication.

Whether intoxication is deemed voluntary or involuntary may also affect the availability of other defenses involving mental disorders. As a general rule, voluntary intoxication and other defenses
predicated on mental disorders stand on separate legal footings and, therefore, may be presented in the same case.

If voluntary intoxication is deemed to be the cause of the mental disorder, however, certain defenses may be unavailable to the defendant. For example, a defendant may rely on the defense of unconsciousness, also called automatism, if the condition resulted from involuntary intoxication, but not if it resulted from voluntary intoxication. The court’s treatment of other defenses and their interrelationship with the defense of voluntary intoxication are
beyond the scope of this article.

Nevertheless, cases involving claims of involuntary intoxication give some flavor of the voluntariness element of voluntary intoxication.

Courts have held that intoxication is to be regarded as involuntary only when the introduction of alcohol or other drugs into a person’s system is “without his knowledge or by force majeure.”

…”‘[w]hen … a person takes his first drink by choice and afterwards drinks successively and finally gets drunk, that is voluntary intoxication, even though he may be an alcoholic. ”’

Pathological Intoxication

The Model Penal Code, which recognizes pathological intoxication as a basis for the involuntary intoxication defense, defines the condition as “intoxication grossly excessive in degree, given the amount of the intoxicant, to which the actor does not know he is susceptible.”

One Court, accepting for purposes of the defendant’s argument that the defendant suffered from pathological intoxication a court found that the defendant had voluntarily ingested enough intoxicants to induce the condition. He had done so, according to the court, as part of a premeditated and deliberate design to kill the victim. Under these circumstances, the defendant’s conduct was voluntary.

The court noted further that the defendant could not rely on voluntary intoxication as a defense because of the maxim, discussed previously, that the defense is unavailable to a person who forms his or her criminal intent while sober and then executes that intent after becoming intoxicated.

The question remains open whether pathological intoxication could support a claim of involuntary intoxication in a case in which the defendant satisfied the Model Penal Code definition or a similar test.

In most cases, voluntary intoxication acts only as a partially exculpatory defense, reducing the charged offense to an offense of a lesser degree. This result flows from judicial decisions limiting the defense of voluntary intoxication to crimes requiring proof of “specific intent.”

Since most specific-intent offenses have lesser-included offenses that do not require proofof specific intent, a person can be convicted of a lesser offense even if his or her intoxication negates the specific intent required for the greater offense.

Even if the defendant prevails on the issue of voluntary intoxication, he or she still can be convicted of a lesser offense not requiring specific intent.

One possible way to understand the two types of offenses, specific and general intent crimes, is offered by the Lafave, which defines general intent as “an intent to do the physical act-or, perhaps, recklessly doing the physical act-which the crime requires” and specific intent as “some intent in addition to the intent to do the physical act which the crime requires.”

This definition appears adequate to describe the mental components of simpler offenses.

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