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 KEEP OUR MOUTH SHUT!

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 MAKE THE POLICE GET A WARRANT TO SEARCH OUR CAR OR SEIZE OUR BLOOD!

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

WE HAVE THE RIGHT TO SHUT UP!

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.

To Prosecute is Human, To Defend Divine

“How can you defend someone who is guilty?”

In law school, this was a question that I deeply pondered. Even though I was passionate about pursuing criminal law, I wondered if I could ever feel ethically confident defending a client who clearly had broken the law. As a young, naïve law student, I didn’t think I could ever be a defense attorney. I could not imagine defending those I knew were guilty. So, I became a Deputy District Attorney for Washoe County instead, and loved being on that side of justice for eight years.

In law school, we learned in our sterile classroom environments that “this noble profession is about finding justice through the adversarial process.” In practice, it is not always like that. The stereotypical reputation that lawyers have from television, movies, countless jokes, or even personal anecdotes is not favorable. Our profession is often seen as full of hucksters who look for loopholes, or worse yet corrupt to their core. As I worked as a prosecutor, I found this stereotype to be far from the truth. There will always be a few who are not honest with the facts or are looking to manipulate the system to avoid consequences, but I’ve found these to be the exceptions. Most attorneys I have worked with, in and out of court, simply seek the best deal for their clients while also trying to get them the assistance they need to overcome things like addiction or other struggles.

My time with the Washoe County District Attorney’s office helped me fully recognize the important need for each individual’s rights to be protected throughout the legal process, whether or not they were guilty. I watched as the members of the defense bar defended the rights of their clients without necessarily defending their actions. As I watched this from the eyes of a prosecutor, I gained a respect for the work that defense attorneys did and the methods most used.

A big turning point in solidifying my personal philosophy in defending guilty individuals, was an article entitled “Dialogue Between a Prosecutor and Defense Attorney” in the Clark Memorandum, a magazine put out by the J. Rueben Clark law school at Brigham Young University. This article highlighted a one-hour discussion between United States Attorney, District of Utah Paul M. Warner and Ronald J. Yengich, a prominent defense attorney in Utah. The words of Mr. Warner resonated with me, explaining all the many reasons he loved being a prosecutor, many of the same reasons I loved being a prosecutor. But even more important were these powerful words of Mr. Yengich:

I have a statement in my office: ‘To prosecute is human, to defend is divine.’ I believe in my heart of hearts that I will be accused before the great white throne and Christ will be my advocate, and he will certainly be defending a guilty client. I know that about myself. I am a defense attorney because I know all of the errors I have committed in my life and the luck that I have to be standing in front of you honorable people after a life that has been full of mistakes and errors that could have put me in trouble.” The imagery of these words have vividly stuck with me all these years since.  This philosophy has become one of the brightest guiding lights in my career.

A big turning point in solidifying my personal philosophy in defending guilty individuals, was an article entitled “Dialogue Between a Prosecutor and Defense Attorney” in the Clark Memorandum, a magazine put out by the J. Rueben Clark law school at Brigham Young University. This article highlighted a one-hour discussion the 2005 Orrin G. Hatch Distinguished Trial Lawyer Conference between United States Attorney, District of Utah Paul M. Warner and Ronald J. Yengich, a prominent defense attorney in Utah. The words of Mr. Warner resonated with me, explaining all the many reasons he loved being a prosecutor, many of the same reasons I loved being a prosecutor. But even more important were these powerful words of Mr. Yengich:

I have a statement in my office: ‘To prosecute is human, to defend is divine.’ I believe in my heart of hearts that I will be accused before the great white throne and Christ will be my advocate, and he will certainly be defending a guilty client. I know that about myself. I am a defense attorney because I know all of the errors I have committed in my life and the luck that I have to be standing in front of you honorable people after a life that has been full of mistakes and errors that could have put me in trouble.” The imagery of these words have vividly stuck with me all these years since.  This philosophy has become one of the brightest guiding lights in my career.

All of us are guilty. We’ve all made mistakes. Some are just more serious than others. My goal is to provide the assistance and protection that each of my clients deserve, despite their guilt. I will forever protect my client’s rights, but I cannot defend their actions.  I defend the rights of the guilty because that is what is right and just.

I strive to live by what Mr. Yengich calls “The Defense Attorney’s Oath” (quoted from Walt Whitman):

This is what you shall do: Love the earth and the sun and the animals. Despise riches. Give alms to everyone that asks. Stand up for the stupid and the crazy. Devote your income and labor to others. Hate tyrants. Have patience and indulgence toward the people. Take off your hat to nothing known or unknown or to any man or any number of men. Go freely with powerful uneducated persons and the young and mothers of families. Reexamine all that you have been told at school or in church or in any book and dismiss whatever insults your soul.