Clinical Textbook of Addictive Disorders 3rd ed - R. Frances, S. Miller, A. Mack (Guilford, 2005) WW

358 IV. SPECIAL POPULATIONSOver time, case law and statutes have almost completely eviscerated intoxicationas a defense against responsibility, but substances and their effects stillhave a place in criminal proceedings in terms of the mitigation of responsibility,when substance use treatment is mandated as an alternative to incarceration, orwhen the long-term medical or psychiatric effects of substances interfere with thedefendant’s ability to proceed. This section reviews these areas. The “irresistibleimpulse” defense, an antiquated and little-used argument, asserts that an impulseto commit the offense could not be resisted by the offender.There are few situations in which responsibility cannot be assigned to thecriminal offender. These include insanity, involuntary intoxication, and beingotherwise incompetent (such as being a minor). Voluntary intoxication itself isnot an excuse; nor has it been over the past 500 years of Anglo-American law,but it may alter the punishment (Slovenko, 1995). When “specific intent” isrequired to be convicted of a particular charge (e.g., murder rather than manslaughterfor a homicide), voluntary intoxication has been successfully used as adefense—that the perpetrator could not have had the specific intent as requiredby law. In some states, when accidents occur while a person is intoxicated, thepresence or absence of mens rea when the substance is first ingested must beassessed when determining intent (Wagenaar & Toomey, 2002).In general, intoxication can be exculpatory when it occurs via trickery orunder duress, in the case of previously unknown susceptibility to an atypicalreaction or side effect to a substance or medication. This is described by Myersand Vondruska (1998). In this sort of defense, mens rea is negated. However, insome jurisdictions, there are specific guidelines and limitations for an acceptableinvoluntary intoxication defense (Downs & Billick, 2000).“Strict liability crimes” are those in which mens rea is not required for aconviction. These include driving while intoxicated or driving under the influence(DWI or DUI). In a number of states, maximum sentences are mandated ifdeath results from a driver who was DWI yet there was only a minimal impactfrom the substance. “Settled insanity” is a situation in which long-term use,which is different from an acute intoxication or toxic psychosis, leads to achronic injury (Slovenko, 1995).Diminished capacity, a partial defense allowed in some jurisdictions, isused to reduce the integrity of the mens rea partial defense in cases in which specificintent is required. If the defense is able to prove the lack of specific intent,then guilt could be found for a lesser/other crime that does not have suchrequirement. This is contrary to the NGRI defense. According to the diminishedcapacity defense, due to intoxication, whether voluntary or not, the personcould not deliberate. The expert must check with the attorney as to whichcharge is a specific intent crime and what rules apply in which jurisdictions. Forexample, a person suffering from delirium tremens may strike out at a healthcare worker he perceives to be a bear coming toward him. Genetic factorsshould, perhaps, be taken into account in a wise and just sentencing.