Contact Us
    Contact Us

    Please use the contact form to send us an email - and receive a response within 12 hours.

    Emergency? Call 720-220-2277 (24/7)

    Map To Our Office
    Read Out Blog
    Case Evaluation
    Charged With A Crime?

    Colorado Criminal Drug Crimes Laws and Defenses – The Defense of Voluntary Intoxication in Colorado

    Introduction: Understanding Colorado Criminal Defenses is critical to a Colorado criminal defense lawyer’s work in defending their clients.  Often clients tell me they were so intoxicated – they should not be held responsible for their crimes.  Voluntary intoxication CAN be a defense under certain circumstances – but in most cases it is NOT permitted as a defense to non specific intent or so called “premeditation ” crimes.  This web page explains the defense of voluntary intoxication in Colorado.

    Here Are Colorado Defenses Known as Justification Defenses

    A justification defense deems conduct that is otherwise criminal to be socially acceptable and non-punishable under the specific circumstances of the case. Justification focuses on the nature of the conduct under the circumstances.

    Examples include:

    • Self-defense

    • Defense of others

    • Defense of property and habitation

    • Use of lawful force

    • Necessity

    Here Are Colorado Defenses Known as Excuse Defenses

    Excuse defenses focus on the defendant’s moral culpability or his ability to possess the requisite Mental state (mens rea). An excuse defense recognizes that the defendant has caused some social harm but that he should not be blamed or punished for such harm.

    Examples include:

    • Duress

    • Insanity

    • Diminished capacity

    • Intoxication (in very limited circumstances)

    • Mistake of fact

    • Mistake of law (in very limited circumstances)

    Then There is the INTOXICATION Defense in Colorado

    Voluntary Intoxication

    Voluntary intoxication does not excuse criminal conduct; however, in limited circumstances, intoxication may negate the necessary state of mind for a given offense and thus prove exculpatory. Intoxication resulting from alcoholism or drug addiction is considered voluntary under common law principles.

    [A] Mental State Defense (Mens Rea Defense)

    – While there are several approaches to evaluating the mens rea portion of criminal activity involving an intoxicated defendant, the most common approach distinguishes between general-intent and specific-intent crimes.

    Under this common law approach, voluntary intoxication is not a defense to general-intent crimes. Voluntary intoxication is a defense to specific intent crimes.

    [B] Special Rule for Homicide

    – Two states, Virginia and Pennsylvania, limit the defense of voluntary intoxication to first-degree murder prosecutions.  In states that recognize the defense in all specific-intent crimes such as the State of Colorado, if the crime of “murder” is divided into degrees, a defendant may generally introduce evidence that his intoxication prevented him from being able to form the requisite state of mind for first-degree murder.

    [C] Voluntary Act

    – Where a defendant’s intoxication was so severe as to render him unconscious at the time of the commission of the crime, some courts have barred a defense based on unconsciousness if such condition resulted from the voluntary consumption of alcohol or drugs. Others courts allow the defendant to argue that the criminal act was not a voluntary one due to his unconscious state, but only in defense to specific-intent offenses.

    Here is the Colorado Jury Instruction on Voluntary Intoxication

    §18-1-801, C.R.S. H:14 INTOXICATION – VOLUNTARY

    You may consider evidence of self-induced intoxication in determining whether or not such intoxication negates the existence  of  the  element(s)  of  [with  intent]  [after deliberation and with intent] [intentionally].

    The prosecution has the burden of proving all the elements of the crimes charged beyond a reasonable doubt. If you find the defendant was intoxicated to such a degree that s/he did not have the mental state of [with intent] [after deliberation and with intent] [intentionally] which is a required element of the crime(s) of  (insert name(s) of specific intent crime(s), you should find the defendant not guilty of [those] [this] charge(s).

    [This  defense  does not apply to the crime(s) of (insert name(s) of specific intent crime(s).]


    This instruction is available only for offenses that require “intent”, “intentionally” or “after deliberation and with intent” as an element, but not for crimes of general intent.


    §18-1-804(1), C.R.S.

    People v. Harlan, 8 P.3d 448 (Colo. 2000). People v. Miller, 113 P.3d 743 (Colo. 2005). People v. Vigil, 127 P.3d 916 (Colo. 2006)(self- induced intoxication is not a defense to a general intent crime).

    [D] Intoxicated-Induced Insanity – The common law does not recognize a defense of temporary insanity based on intoxication where the defendant’s intoxication was voluntary.

    Some jurisdictions do recognize a defense based on “fixed” insanity, a condition which results from long-term use of drugs or alcohol

    What About the Defense of “Involuntary Intoxication”

    [A] Definition – Intoxication is “involuntary” if the defendant is not to blame for becoming intoxicated. It may result from:

    • coerced intoxication;

    • intoxication by innocent mistake as to the nature of the substance being consumed;

    • unexpected intoxication from a prescribed medication provided the defendant did not purposely take more than the prescribed dosage; or

    • “pathological intoxication,” a temporary psychotic reaction, often manifested by

    violence, which is triggered by consumption of alcohol by a person with a predisposing mental or physical condition, e.g., temporal lobe epilepsy, encephalitis, or a metabolic disturbance.

    The defense only applies if the defendant had no reason to know that he was susceptible to such a reaction.

    [B] Availability of the Defense

    – Under common law, a defendant found to have been involuntarily intoxicated may avail himself of the defense of temporary insanity. Furthermore, one who committed an offense while involuntarily intoxicated can otherwise seek acquittal by asserting the mens rea defense.

    Here is the Colorado Jury Instruction On The Defense of INVOLUNTARY INTOXICATION


    It is an affirmative defense to the crime of (insert name of crime) that the defendant lacked the capacity to conform his conduct to the requirements of the law because of intoxication that was not self-induced.

    In addition to proving all of the elements of the crime charged beyond a reasonable doubt, the prosecution also has the burden to disprove the affirmative defense beyond a reasonable doubt.

    After considering all the evidence, if you decide the prosecution has failed to disprove beyond a reasonable doubt any one or more elements of the affirmative defense, you must return a verdict of not guilty.


    This instruction can only be used when there has been evidence introduced that the intoxication was not self- induced. In all other situations concerning intoxication, the previous instruction is  the only instruction applicable.

    The  Model Penal Code

    [A] General Rule – Model Penal Code § 2.08(4)–(5) distinguishes three types of intoxication:

    (1) voluntary (“self-induced”) intoxication;

    (2) pathological intoxication; and

    (3) involuntary (“non-self-induced”) intoxication.

    [B] Exculpation Based on Intoxication

    [1] Mens Rea Defense

    – Any form of intoxication is a defense to criminal conduct if it negates an element of the offense. [MPC § 2.08(1)] Since the Code does not distinguish between “general intent” and “specific intent” offenses, the mens rea defense is broadlyapplied, with one exception. In the case of crimes defined in terms of recklessness, a person acts “recklessly” as to an element of the crime if, as the result of the self-induced intoxication, he was not conscious of a risk of which he would have been aware had he not been intoxicated. [MPC § 2.08(2)]

    [2] Insanity – Pathological and involuntary intoxication are affirmatives defenses, if the intoxication causes the defendant to suffer from a mental condition comparable to that which constitutes insanity under the Code. [MPC § 2.08(4)]

    Other Articles of Interest:

    If you found the information provided on this webpage to be helpful, please click my Plus+1 button so that others may also find it.

    H. Michael Steinberg Esq.
    Attorney and Counselor at Law
    The Colorado Criminal Defense Law Firm of H. Michael Steinberg
    A Denver, Colorado Lawyer Focused Exclusively On
    Colorado Criminal Law For Over 40 Years.
    The Edward Building
    8400 East Prentice Ave, Penthouse 1500
    Greenwood Village, Colorado, 80111
    E-Mail:  [email protected]
    Primary Web Site:
    Colorado Criminal Law Blog:
    Main:  303.627.7777
    Cell:  720.220.2277
    24/7 Pager:  303.543.4433
    FAX (Toll Free):  1.877.533.6276
    Always investigate a lawyer's qualifications and experience before making a
    decision to retain that lawyer or, for that matter, any professional any field.