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76-2-306 - Voluntary Intoxication as an Affirmative Defense in Utah

Voluntary intoxication can, in certain circumstances, form a complete defense to a criminal prosecution under Utah law. But these cases are rare, and the assistance of an experienced criminal attorney can be critical.

Based in Salt Lake City, criminal defense attorney Stephen Howard has spent his career defending the rights of individuals who are being prosecuted for crimes in Utah. He has extensive experience in cases ranging from the most serious felony charges to minor misdemeanor offenses. Contact us today to arrange for an initial consultation.

Voluntary Intoxication - Negating the Required Mental State

Just getting drunk and doing something stupid does not create a defense to criminal prosecution. The affirmative defense provided by Utah's voluntary intoxication statute creates only a narrow defense. But if the elements of the defense are met, then voluntary intoxication can form a complete defense to a criminal charge.

In order to serve as a defense to a criminal charge, evidence must show that the intoxication was of such a kind and degree that it negated the mental state element of the offense. Consider the following hypothetical example:

Utah Alcohol Crimes DefenseAbe has spent the evening socializing at a bar, and has had several drinks. As he is preparing to leave, Abe looks around for his phone, but mistakenly picks up Beth's cell phone and walks out the door. Shortly thereafter, Beth realizes that Abe has taken her phone, and calls the police to report the theft. The police locate Abe a few minutes later, and demand that he show them what he has in his pockets. Abe, still in an intoxicated state, pulls the phone from his pocket. Beth identifies it as her phone, and Abe is taken into custody by police for committing the crime of theft.

In the above-described scenario, the evidence supports all of the required elements of a theft charge: Abe took control over the property of another person; such control was not authorized by the owner; and a jury could infer from these facts that Abe intended to deprive the owner of that property. If this is the only evidence that is presented at trial, then a jury would likely convict Abe of theft.

If, however, a resourceful defense attorney were able to present evidence that Abe was intoxicated at the time the alleged theft occurred, and that as a result of his intoxication Abe believed that the phone he took was in fact his own phone, then a jury could find Abe not guilty under Utah's voluntary intoxication defense. Under such a scenario, Abe's voluntary intoxication caused him to not realize that he was taking another person's phone, and could negate the statutory element of having the "purpose to deprive the owner thereof"

Most criminal charges under the Utah Code require evidence that the defendant acted intentionally, knowingly, recklessly, or with criminal negligence. If recklessness or criminal negligence are the only mens rea requirements under a criminal statute, and if the defendant is unaware of a risk because of voluntary intoxication, then his lack of awareness is considered immaterial in a prosecution for that offense. In other words, voluntary intoxication is not a defense where recklessness or negligence are the required mental state elements of an offense. Consider the following hypothetical scneario.

Charlie has been drinking - perhaps just a bit too much. In his intoxicated state, Charlie goes to his apartment building, accidentally gets off the elevator on the wrong floor, and walks down the hall. Approaching what he believes to be his apartment, Charlie opens the unlocked door, stumbles through the doorway, and passes out on the floor. About an hour later, Dawn (in a completely sober state) comes home, and discovers a strange man lying on the floor of her apartment, just inside the door. Dawn runs back down the hallway, and calls the police from her cell phone. Police respond, and arrest Charlie on suspicion of burglary and trespass. After screening the case, prosecutors determine that there is not enough evidence to support the burglary charge, but file a class A misdemeanor residential trespass charge against Charlie in the district court.

In the above-described scenario, there is sufficient evidence to support all of the elements of a criminal trespass charge against Charlie. A common element of any trespass charge is unlawfully entering or remaining on property. This element is satisfied, because Charlie does not have permission to be in Dawn's apartment. In addition to unlawful entry, a trespass charge may be supported by evidence of at least one additional element.

One variation of trespass requires evidence that the defendant intended cause annoyance or injury to any person. Under this variation, voluntary intoxication would form a defense to Charlie's actions, because as a result of his intoxication, he did not realize that he was in the wrong apartment.: he has unlawfully entered the dwelling of another person.

But there is another variation of trespass that requires only proof that the defendant was "reckless as to whether his presence will cause fear for the safety of another." Because this element requires only proof that the defendant was reckless, voluntary intoxication does not form a defense. A prosecutor would likely argue for conviction based on the theory that Charlie's actions recklessly caused Dawn to fear for her safety when she came home and found a stranger in her apartment. (Consider, however, that Charlie could still potentially raise a mistake of fact defense.)

In Charlie's situtation, his conduct could also be seen as forming the basis of a public intoxication charge. Such is likely to occur in many voluntary intoxication defense cases. In raising the defense of voluntary intoxication, a defendant may expose himself to the risk of prosecution for a public intoxication charge. But if the charges being faced are serious, it is well worth considering the viability of a voluntary intoxication defense.

Statutory Language for Utah's Voluntary Intoxication Defense

As of 2014, Utah's voluntary intoxciation defense statute (76-2-306) reads as follows: "Voluntary intoxication shall not be a defense to a criminal charge unless such intoxication negates the existence of the mental state which is an element of the offense; however, if recklessness or criminal negligence establishes an element of an offense and the actor is unaware of the risk because of voluntary intoxication, his unawareness is immaterial in a prosecution for that offense."

Choosing a Utah Criminal Defense Attorney in Salt Lake City

Criminal Attorney Salt Lake CityBased in Salt Lake City, criminal attorney Stephen Howard provides legal services to clients throughout Utah. His track record include not guilty verdicts, dismissals, and appellate reversals in some of the most serious charges on the books in Utah. If you are facing prosecution for a crime in Utah, you need an experienced criminal defense lawyer on your side.

Contact us today to arrange for an initial confidential consultation.


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Serving Salt Lake, Davis, Weber, Utah, Cache, Tooele, Summit, Box Elder, and Wasatch Counties, and all of Utah.

Attorney Stephen Howard practices as part of the Canyons Law Group, LLC and Stephen W. Howard, PC.

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560 South 300 East, Suite 200, Salt Lake City, UT 84111
952 S. Main St., Suite A, Layton, UT 84041

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In Salt Lake City, call 801-449-1409.
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