How Does Intoxication Effect Consent?

I’ve been thinking about consent for quite some time. I want to start by saying I completely agree with the 10 state jurisdictions who have put into law that voluntary intoxication leads to an inability to consent to sex. A person who, for whatever reason, would be unable to stand before a judge and enter a plea, is not in a position to make a decision as important and potentially life altering as sexual activity. This seems a logical sentiment that justly protects the rights of all involved.

My question really comes about, not in terms of consent to sexual activity, but other forms of consent. I sat in my office, watching video of a client who was obviously intoxicated. During the night he had been provided bottle service and had become increasingly intoxicated as the night wore on. He was being accused of a serious crime and was in the holding area of a night club. As he sat there, he professed apologies to any who would listen. He tried to explain his thought process. Finally, a sheriff’s deputy came in with him and read to him his Miranda  rights. Of course, wanting to clear his name he started explaining his story. He was vague and somewhat evasive with his story, so the deputy continued to prod and pull before finally just asking “you did X, Y, and Z, didn’t you.” My client hung his head and said “yes.”

Unfortunately, this is not an uncommon occurrence. While a subject is high, drunk (or both), officers will question them about their behavior, often even providing the parameters and terms they need for arrest. This same intoxicated individual would not have the legal cognitive capacity to enter a plea in court nor to consent to sex, but based on common practices, he is allowed to voluntarily waive their Fourth, Fifth, and Sixth Amendment rights. If a person is not legally sober enough to make important decisions about sexual conduct, why are they held legally liable to make decisions that could very well affect their liberty or possibly even their life? Why do we hold individuals accountable to two very different expectations of critical thinking when in the same intoxicated state?

This is not the first time this question has been raised, nor will it be the last. For police officers, priorities most often work toward closing cases. If an officer is called out on a specific charge, they will be looking for evidence to substantiate that charge. They may not automatically weigh the evidence before them and then decide on the case. For example, if they get a call about a suspected DUI case, they are going to be looking at all the clues that support a DUI prognosis, rather than ask the individual if their eyes are red from crying all night. They will just assume that red eyes equal intoxication. To this end, it is in the individual’s best interest to get a statement from all involved parties while limiting themselves in what they say.

As an American Citizen:


WE HAVE THE RIGHT TO HAVE A LAWYER PRESENT FOR QUESTIONING! (Though not for field sobriety tests or evidentiary tests.)


WE HAVE THE RIGHT TO REFUSE TO DO FIELD SOBRIETY TESTS OR EVIDENTIARY TESTS. (There may be some consequences to deal with though).


When we know our rights, especially when it comes to legal consent, we will be better advocates for ourselves and others. And unless the law changes the legality of verbal statements and evidence obtained while an individual is intoxicated, the best policy is to consult an attorney before anything is said.

I am happy to advocate for your rights.

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