Intoxication Defense - Offenses of Basic and Of Specific Intent

Offenses of Basic and Of Specific Intent

In some states, a distinction is based on the nature of the mens rea requirement. While voluntary intoxication may not be a defense to an offense of basic (sometimes termed "general") intent, it is allowed as a defense to offenses requiring a specific intent. This term refers to two separate types of offense:

1. Some offenses are based on basic intent where the mens rea is no more than the intentional or reckless commission of the actus reus. But a limited number of offenses are defined to require a further element in addition to basic intent, and this additional element is termed specific intent.
2. The inchoate offenses such as attempt, solicitation, and conspiracy require specific intent in a slightly different sense. The test for the existence of mens rea may be:

(a) subjective where the court must be satisfied that the accused actually had the requisite mental element present in his or her mind at the relevant time (see concurrence);

(b) objective where the requisite mens rea element is imputed to the accused on the basis that the reasonable person would have had the mental element in the same circumstances;

(c) hybrid where the test is both subjective and objective.

The rationale for the existence of criminal laws is as a deterrent to those who represent a danger to society. If an accused has actually committed the full offence, the reality of the danger has been demonstrated. But, where the commission of the actus reus is in the future, a clear subjective intention to cause the actus reus of the full offense must be demonstrated. Without this "specific intent", there is insufficient evidence that the accused is the clear danger as feared because, at any time before the commission of the full offense, the accused may change his or her mind and not continue.

If a "specific intent" in either sense is required and there is clear evidence that the accused was too intoxicated to form the element subjectively, this fact is recognised as a defense unless the loss of control was part of the plan. But this is of little value to defendants since there are almost always offenses of basic intent that can be charged and/or the basic intent offenses are usually lesser included offenses and an alternative verdict can be delivered by judge or jury without the need for a separate charge. In English law, note the controversial Jaggard v Dickinson 3 All ER 716 which held that, for the purposes of the statutory defense of lawful excuse under s5 Criminal Damage Act 1971, a drunken belief will found the defense even though this allows drunkenness to negate basic intent. This is limited authority and does not affect the generality of the defense.

Examples of specific intent crimes include first degree murder based on premeditation and deliberation, attempts, burglary (intent to commit larceny), larceny (intent to steal), possession of or receiving stolen property (intent to steal), and robbery (intent to steal). General intent crimes include arson, rape, common law murder, and voluntary manslaughter.