Intoxication in Criminal Law: Liability for Offenses Committed Under Influence

Intoxication is a significant causal factor for crime, and the question of how criminal acts committed under the influence are to be judged constitutes an important area in criminal law. This article provides a thorough review of criminal liability for acts committed under intoxication, with particular emphasis on self-induced intoxication, the distinction between typical and atypical intoxication, and the specific burden of proof rules that apply in this area.

Typical and Atypical Alcohol Intoxication

In a criminal legal and medical context, a distinction is made between typical (normal) and atypical (pathological, abnormal) alcohol intoxication.

Typical Alcohol Intoxication

In typical alcohol intoxication, consciousness gradually diminishes as the dose of alcohol increases, and simultaneously, the ability for purposeful movement is impaired. When complete unconsciousness occurs, the intoxicated individual is usually unable to engage in criminal activity.

Atypical Alcohol Intoxication

In atypical intoxication, the picture is different:

• Mental disturbances often occur suddenly and after relatively small doses of alcohol

• The usual signs of intoxication - unsteady gait, slurred speech, etc. - may be absent

• Nevertheless, consciousness becomes severely clouded

• Delusions and hallucinations may occur

• Afterward, the person generally remembers nothing of what happened during the intoxication

Atypical intoxication typically occurs in individuals who are predisposed to it (epileptics, neurotics, psychopaths, and individuals with brain injuries), but also individuals who otherwise react normally to alcohol may occasionally react atypically under the influence of illness, fatigue, or intense mental stress.

It should be noted that there are many transitional forms between completely typical and clearly atypical intoxication. Even in intoxication that is not atypical, there can be such profound disturbances of consciousness that the condition would be medically classified as unconsciousness.

Section 45 of the Penal Code - Self-Induced Intoxication

Section 45 of the Penal Code establishes a central principle in Norwegian criminal law: "Unconsciousness resulting from self-induced intoxication (induced by alcohol or other substances) does not exclude punishment."

This principle represents a marked exception to the principle of proportionality between guilt and punishment. What can be blamed on the perpetrator is that he has intoxicated himself; what he subsequently does in an unconscious state, he cannot be responsible for. In one case, he falls asleep quietly and peacefully and avoids any punishment; in another, he commits a serious crime and must be punished for it.

The Justification for Responsibility under Self-Induced Intoxication

When the law was revised in 1929, there was agreement that the previous rules were too lenient. Several considerations were emphasized:

1. The educative element that one is fully responsible even for actions committed under intoxication

2. The general legal awareness that required full responsibility of the intoxicated

3. A principled aversion to alcohol use in broad circles

Further on Criminal Liability for Acts Committed in Intoxication

The Same Rule for All Types of Self-Induced Intoxication

The provision in § 45 applies to all types of self-induced intoxication, regardless of:

• Which intoxicant has been used (alcohol, drugs, medications, etc.)

• How it was ingested (by drinking, inhalation, or injection)

• Whether the intoxication is typical or atypical

It is important to note that if substance abuse has led the abuser into a psychosis, it is the provision in § 44, 1st paragraph regarding psychotic offenders that applies. The psychosis leads to immunity from punishment, even if it is entirely self-induced.

The Fingering Principle - Judgement as if the Perpetrator Were Sober

With the amendment in 1997, provisions were included in sections 40 and 42 of the Penal Code specifying that in cases of self-induced intoxication, the court shall disregard the intoxication in assessing whether the act was intentional or not. The perpetrator is judged as if he were sober.

This is often referred to as the law "presuming intent" in cases involving intoxication. One does not ask whether the perpetrator actually had intent, but how he would have been judged if he had committed a similar act in a sober state.

The principle presupposes a kind of hypothetical assessment based on the external circumstances:

• If the intoxicated has assaulted and raped a woman, he is to be judged for intentional rape

• If the intoxicated has taken someone else's motor vehicle, driven erratically, and killed a person, he may be judged for intentional use theft, but only for negligent manslaughter

But it is important to note that one cannot judge the intoxicated for an intentional crime unless the external circumstances of the act would have undoubtedly marked it as intentional had it been committed in a sober state. In cases of doubt, the mildest solution must be chosen.

Criminal Provisions Requiring Purpose

An important limitation of the fingering principle applies to criminal provisions that require a specific purpose. Case law has established that one cannot feign purpose the same way as intent.

This means that if a person, due to self-induced intoxication, assaults another and takes valuable items from him, it can be difficult to convict him of robbery unless he intoxicated himself specifically to carry out the act. The provision on robbery in the law requires the intent to gain unlawful benefit for oneself or others.

On the other hand, property crimes, such as when a highly intoxicated person breaks into a store and steals, often have such a purposeful character that the intent to gain can be established according to usual evidence rules.

It is also generally accepted that premeditation cannot be feigned.

When is Intoxication Self-Induced?

A central question is when intoxication can be considered self-induced. Self-induced is not the same as intentional, but closely aligns with negligent.

Intoxication is self-induced as soon as it can be attributed to the perpetrator that he became intoxicated, and this is the case when he consumes such a large quantity that he must expect the possibility of losing complete control of himself. It suffices that the intoxication is self-induced; it does not matter if the accused had no reason to expect to become unconscious.

The general rule will be that intoxication is self-induced. Special circumstances must exist to accept the opposite, for example:

• An inexperienced person drinks alcohol believing it is non-alcoholic

• A person consumes a modest quantity of alcohol that would not normally intoxicate him, but the drink has a particular effect due to illness, fatigue, or other reasons (provided the person should not have expected this)

Reduction of Punishment for Self-Induced Intoxication

Even though self-induced intoxication cannot lead to immunity from punishment, it may under particularly mitigating circumstances lead to the penalty being set below the minimum specified for the act, and to a milder type of punishment. This is regulated in section 56 letter d of the Penal Code.

Liability for Non Self-Induced Intoxication

The law has no special rules for intoxication that is not self-induced. Here, the general principles apply:

• If the intoxication has led to unconsciousness, the perpetrator is exempt from punishment under § 44

• If there is a strong disturbance of consciousness not regarded as unconsciousness, the punishment can be reduced below the usual minimum under § 56 letter c

• It is also conceivable that the perpetrator is exempt from punishment because the intoxication has led to an incorrect understanding of the factual situation, which excludes intent

In cases of non self-induced intoxication, there is no presumption of intent. The weakening of self-control and moral inhibitions that usually accompany intoxication does not exempt from punishment, even if there is reason to believe that the perpetrator would not have committed the act if he had been sober. The involuntary intoxication only has significance for sentencing.

Conclusion

Norwegian criminal law is based on the principle that unconsciousness resulting from self-induced intoxication does not exclude punishment. In assessing whether the intoxicated individual acted with intent, they should be judged as if they were sober. This principle is justified by general preventive considerations and the general legal awareness.

However, the principle has its limitations, particularly when it comes to criminal provisions requiring a specific intent. It is also important to note that when intoxication is not self-induced, the general rules on immunity from punishment due to unconsciousness and reduced accountability due to significant disturbance of consciousness apply.