Our criminal defence lawyers are experienced in identifying when intoxication can be used strategically to challenge the prosecution’s case in the Local Court, District Court and Supreme Court.
Intoxication is not a complete defence except in very limited circumstances. It is a defence to certain parts of criminal offences, which if not proved can result in not guilty verdicts. Intoxication as a defence is a complicated area of the law and a difficult defence to raise. Our experienced criminal lawyers can assist you in raising intoxication if it is an available defence to you.
What is intoxication?
Intoxication refers to being under the influence of alcohol, illicit drugs, prescription drugs or any other substance that affects your mental or physical functioning.
Voluntary intoxication
Voluntary intoxication is not a complete defence in most cases. Instead, it challenged the mental element (mens rea) required for specific intent crimes. Voluntary intoxication refers to:
- Where you chose to consume the substance,
- Even if you did not intend to commit an offence.
Involuntary intoxication
Intoxication is a complete defence where the intoxication was involuntary.
You are not criminally responsible for an offence if the relevant conduct resulted from intoxication that was not self-induced. Examples of involuntary intoxication are:
- Drink spiking,
- Being forced to consume substances,
- Unexpected reaction to prescribed medication.
How do we defend intoxication cases?
Our criminal defence lawyers take a strategic approach by:
- Determining whether the intoxication was voluntary or involuntary.
- Arguing that the accused was incapable of forming specific intent.
- Gathering evidence of the level of intoxication.
- Challenging any suggestion that the offence was planned before intoxication.
The legal test for intoxication
The law on intoxication is governed by Part 11A of the Crimes Act 1900 (NSW).
Voluntary intoxication
- Cannot be used to argue that your conduct was involuntary,
- May only be considered when assessing intent,
- Only applies to specific intent offences.
Involuntary intoxication
- Can operate as a complete defence in some cases,
- Particularly where the intoxication caused the conduct or prevented intent from forming.
Specific intent vs Basic intent offences
Specific intent offences
These require proof of a particular intention to commit the serious crime. If you were so intoxicated that you could not form that intent, you may be found not guilty of that offence. Some examples include:
- Murder,
- Wounding with intent,
- Assault with intent to rob.
Basic intent offences
These do not require proof of a specific purpose. Intoxication is not relevant, and you are treated as if you were sober. Some examples include:
- Common assault
- Assault occasioning actual bodily harm,
- Sexual assault.
The reasonable person test
Even where intoxication is relevant, courts apply an objective test. This means your conduct is compared to that of a reasonable, sober person.
Contact us
Australian Criminal Law Group offers free first appointments, in person at Sydney CBD, Parramatta, and Blacktown, as well as via phone and video.
To book your free first conference with the Australian Criminal Law Group, call (02) 8815 8167 or submit a website enquiry.
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