Involuntary Intoxication Defense to Georgia DUI

Involuntary Intoxication Defense to Georgia DUI

Many prosecutors, Judges, and even defense lawyers do not under the involuntary intoxication defense to Georgia DUI charges. Of course, the facts need to support the defense, but in the right case, involuntary intoxication is a powerful and intuitive defense. Colon v. State, 256 Ga. App. 505, 568 S.E.2d 811 (2002), provides very useful direction on the defense of involuntary intoxication:

5. In his fifth and sixth enumerations, Colon complains of the trial court’s charge on involuntary intoxication and its failure to give his Request to Charge No. 9. They are considered together.

(a) Regarding the involuntary intoxication charge, Colon’s specific objection is to the court’s instructing the jury that “[t]he defense of involuntary intoxication is not available to excuse driving under the influence.” This instruction amounted to reversible error.

The entire portion of the court’s charge relating to involuntary intoxication was that

[a] person shall not be found guilty of a crime when at the time of the conduct constituting the crime, the person because of involuntarily [sic] intoxication did not have sufficient mental capacity to distinguish between right and wrong in relation to the criminal act. Involuntary intoxication means intoxication caused by (a) consumption of a substance through excusable ignorance or (b) the coercion, fraud, trick, or contrivance of another person. The defense of involuntary intoxication is not available to excuse driving under the influence. It absolves responsibility only if the intoxication renders the defendant incapable of distinguishing right from wrong. If the inability to distinguish right and wrong is the product of voluntary intoxication, there is no defense.

[10][11] While it is true that the jury charge must be considered as a whole when determining its correctness, Roberson v. State, 236 Ga.App. 654, 655(1), 512 S.E.2d 919 (1999), this charge contained the clearly erroneous statement that involuntary intoxication was not available as an affirmative defense to driving under the influence. See Larsen v. State, 253 Ga.App. 196, 198(1), 558 S.E.2d 418 (2002); Flanders v. State, 188 Ga.App. 98, 371 S.E.2d 918 (1988); accord Commonwealth v. Darch, 54 Mass.App.Ct. 713, 767 N.E.2d 1096 (2002). This declarative assertion by the trial judge was straightforward and unambiguous. The modifiers following it are not likely to have erased an erroneous impression from the minds of the jurors. Furthermore, the error was not harmless, as the defendant raised the issue of involuntary intoxication in his testimony when he claimed that someone put an unknown drug in his drink, unbeknownst to him. See Tarvestad v. State, 261 Ga. 605, 409 S.E.2d 513 (1991).

The case at bar illustrates again that instructing juries in the precise language of the Suggested Pattern Jury Instructions serves the goal of judicial economy as well as the goal of providing justice to both sides, the state and the defendant.


Ben Sessions is 1 of 5 attorneys in Georgia Board Certified in DUI Defense by the National College for DUI Defense. He is a DUI lawyer and owner of The Sessions Law Firm, LLC. His practice is focused on the defense of clients charged with DUI and other drug and alcohol-related offenses. Ben has co-authored articles and participated in seminars before the National College for DUI Defense (NCDD), the Georgia Public Defender Standards Council, and other organizations. He is certified as both a Practitioner and Instructor of the National Highway Safety Traffic Safety’s Standardized Field Sobriety Testing procedures. He has received extensive training in forensic breath, blood, and urine testing. He is a member of the National College for DUI Defense, the National Association of Criminal Defense Lawyers, and the Georgia Association of Criminal Defense Lawyers. Ben Sessions graduated from the University of Georgia School of Law. In 2010, 2011, 2012, 2013, and 2014, he was named a “Rising Star” in the area of DUI defense by the Super Lawyers Magazine, and he was recognized for the “Greatest Trial Victory of the Year” by the Georgia Defense of Drinking Drivers Group. Ben is the State Delegate and a Faculty member for the NCDD.

  • Delicious
  • Facebook
  • Reddit
  • StumbleUpon
  • Twitter
  • RSS Feed