Voluntary Intoxication as a Defense
Voluntary intoxication is one of the most misunderstood defenses, and the printed scope tells you exactly how to handle it.
8. Voluntary Intoxication as a Defense
Voluntary intoxication is not a defense to any criminal charge, although the fact of intoxication may be considered in determining whether the defendant had the purpose, motive, or intent required for conviction of the charged crime. NRS 193.220. 42
- This statute applies only to voluntary intoxication. Involuntary intoxication (when a person is administered intoxicants without their knowledge or against their will) is not governed by this statute.
- Voluntary intoxication does not itself eliminate criminal liability. Liability is lessened or eliminated only if the intoxication affects a required element of the crime—such as the ability to form a particular purpose, motive, or intent.
- The Nevada FLE does not require recall of how the Nevada courts have ruled on the intersection of this defense with particular crimes or fact patterns. Test-takers need only to be able to identify how the defense might affect liability in hypothetical fact patterns.
Voluntary intoxication is not a defense to any criminal charge. It operates only as evidence: the fact of intoxication may be considered in deciding whether the defendant had the purpose, motive, or intent the charged crime requires.
Getting drunk or high on your own does not, by itself, excuse a crime or eliminate liability. But there is a narrow, important qualification. Liability is lessened or eliminated only if the intoxication affects a required element of the crime, such as the ability to form a particular purpose, motive, or intent. The way it operates is not as a free-standing excuse but as evidence bearing on a mental-state element.
- 1What mental state does the charged crime require? If the crime requires a particular purpose or intent, evidence that the defendant was too intoxicated to form that purpose or intent is relevant and can negate the element. If the crime requires no such particular purpose, motive, or intent, intoxication has no element to attack and changes nothing.
- 2Watch the voluntariness line. This statute governs voluntary intoxication only. Involuntary intoxication, where a person is drugged without their knowledge or against their will, is not governed by this statute at all, so do not analyze involuntary-intoxication facts under this rule.
The exam does not test how Nevada courts have applied this to particular crimes. You only need to identify how the defense might affect liability in a hypothetical, by asking whether the intoxication negates a required purpose, motive, or intent.
"Not a defense, but it can negate a required intent."
Voluntary intoxication never works as a stand-alone excuse.
It only matters when the charged crime requires a particular purpose, motive, or intent, and the intoxication is so significant that the defendant could not form it.
If the crime requires no such particular purpose or intent, intoxication has nothing to attack.
And keep the line clean: this rule is for voluntary intoxication only; involuntary intoxication is not governed by it.
A defendant drank heavily of their own accord, then is charged with a crime.
Version one: the charge requires proof that the defendant acted with a particular purpose, a specific intent to bring about a result. The defense offers evidence that the defendant was so intoxicated that they could not form that purpose. Here the intoxication bears on a required element, so the fact of intoxication may be considered in deciding whether the defendant actually had the required purpose, and if the jury concludes the defendant could not form it, the element fails and liability is reduced or eliminated.
Version two: the charge requires no particular purpose, motive, or intent. Now there is no specific mental-state element for the intoxication to negate, so voluntary intoxication does not lessen or eliminate liability; it is not a defense and there is no element for it to attack.
If someone secretly spiked the defendant's drink without the defendant's knowledge, that is involuntary intoxication, which this rule does not govern, so this statute is not the framework to apply.
An option calling voluntary intoxication a complete defense, an automatic acquittal, or saying intoxication excuses the crime by itself.
Voluntary intoxication is not a defense to any criminal charge; it bears only on whether a required purpose, motive, or intent existed.An option that analyzes secretly-drugged or against-the-will facts under this rule, or treats voluntary and involuntary intoxication the same.
This rule governs voluntary intoxication only; involuntary intoxication is not governed by it.An option letting intoxication reduce liability for a crime that requires no particular purpose, motive, or intent.
Liability is affected only if the intoxication negates a required element; with no such element, intoxication changes nothing.An absolute claim that intoxication always, never, or automatically determines liability.
The rule is conditional: intoxication matters only insofar as it negates a required purpose, motive, or intent, and only when voluntary.the stem has a defendant who got intoxicated and now points to the intoxication to avoid or reduce liability.
was the intoxication voluntary?
If someone slipped the substance to the defendant without their knowledge or against their will, this rule does not apply; do not analyze it here.
if voluntary, does the charged crime require a particular purpose, motive, or intent?
If it does, evidence that the defendant was too intoxicated to form that mental state is relevant and can negate the element, lessening or eliminating liability.
If the charged crime requires no such particular purpose or intent, voluntary intoxication has no element to attack and is not a defense, no matter how intoxicated the defendant was.
A defendant spent an evening drinking heavily of his own choice. He is charged with a crime that the prosecution must prove he committed with a specific intent to bring about a particular result. At trial, the defense offers credible evidence that, by the time of the act, the defendant was so intoxicated that he was incapable of forming that specific intent. The prosecution argues that voluntary intoxication can never be considered for any purpose.
How should the court treat the evidence of the defendant's intoxication?
A defendant became badly intoxicated by drinking on her own and is charged with a crime that requires no particular purpose, motive, or intent; the prosecution need only prove that she engaged in the prohibited conduct. The defense seeks to avoid liability solely on the ground that she was extremely intoxicated and not thinking clearly when she acted. There is no claim that anyone caused her to become intoxicated.
Is the defendant's voluntary intoxication likely to eliminate her liability for this crime?
A defendant attended a gathering where, unknown to him, another guest secretly added a strong intoxicating drug to his soft drink. The defendant, who had chosen not to drink any alcohol and had no idea he had ingested anything, became heavily intoxicated and committed an offense while in that state. He seeks to avoid liability based on his intoxicated condition.
Is this intoxication governed by the rule on voluntary intoxication?
A defendant who became intoxicated by his own choice is charged with a crime requiring proof that he acted with a specific intent. The defense argues that, because he was voluntarily intoxicated, he is automatically entitled to an acquittal without any need to show how the intoxication affected his state of mind. The prosecution responds that the defense has the effect of intoxication backwards.
Is the defense's argument correct?
A defendant voluntarily drank to the point of heavy intoxication and is charged with a crime that requires proof of a particular purpose to achieve a specific result. The trial evidence is conflicting: some of it suggests the defendant was capable of forming and did form that purpose despite the drinking, while other evidence suggests he was too intoxicated to form it. The defense asks that the jury be permitted to weigh the intoxication evidence on the question of purpose.
Should the court permit the jury to consider the intoxication on the question of the required purpose?