Involuntary intoxication is an affirmative defense to a DUI charge and other criminal offenses. Unfortunately, well known date rape drugs such as GHB (Gamma-hydroxybutyrate), which is odorless, tasteless, and comes in a powder or colorless liquid form, can be easily dropped into a person’s drink and cause acute intoxication to include complete memory loss. GHB is a powerful central nervous system depressant and when combined with alcohol, it can increase impairment (and potentially result in a person ingesting GHB and/or alcohol driving and taking other actions without any memory of doing so). It is metabolized quickly by the body resulting in potentially debilitating impairment for up to a number of hours depending on the person and is also gone from a person’s system entirely in less than a day, making it the perfect drug to facilitate a sexual assault.
Involuntary intoxication can be an extremely difficult defense to establish since such drugs such as GHB are administered to victims surreptitiously. Further, in the case of a DUI arrest, if there is no blood test, the drug quickly disappears from the person’s system. The prosecution also need not disprove involuntary intoxication in its case-in-chief because it is an affirmative defense.
However, there can be circumstantial evidence notwithstanding the lack of a blood test to establish the defense of involuntary intoxication. For instance, if a person entirely loses their memory after having only a few drinks, this is can be a strong indication that the person was drugged, even if the person continues to drink alcohol afterwards. In building a defense based on circumstantial evidence that an arrest was the result of involuntary intoxication, significant investigation may not need to be conducted, including interviewing witnesses (such as a bartender and/or friends the arrestee), establishing an opportunity that the person could have been drugged, obtaining restaurant or bar tabs, obtaining and reviewing surveillance video, and employing an expert witness experienced in toxicology and pharmacology to explain to the judge or jury how drugs like GHB affect the body and why they become quickly undetectable.
The law concerning involuntary intoxication is not well-developed in Virginia, but it is clear that while there is “no mens rea requirement that an individual intend to operate a vehicle while intoxicated, [the Court’s] holding does not convert a violation of Code § 18.2–266[Virginia’s DUI statute] into a strict liability offense. Where applicable, the affirmative defense of unconsciousness due to involuntary intoxication, for example, would be available to a defendant.”Case v. Commonwealth, 63 Va. App. 14, 27, n. 3 (2014). The Virginia Supreme Court has also held that a violation of the Virginia DUI statute requires that the intoxicant be self-administered. Jackson v. Commonwealth, 274 Va. 630, 652 S.E.2d 111 (2007). The defense of involuntary intoxication has been interpreted as the equivalent of putting on an insanity defense such that the drugging caused the person not to understand the nature, character, and consequences of her act or that she was unable to distinguish right from wrong at the time she committed the offense. Schmuhl v. Commonwealth, 69 Va.App. 281 (2018)(adopting M’Naghten rule and procedural requirements of asserting the same to the defense of involuntary intoxication).
Joseph King, a partner at the firm, recently litigated an involuntary intoxication defense in a DUI case in a Virginia General District Court resulting in the client being acquitted of DUI. Witnesses, documentary evidence, and expert testimony resulted in establishing circumstantial evidence the client had been drugged, causing complete memory loss, and making the client not responsible for the subsequent action of driving under the influence.