Contact Us for a Free Consultation 713-222-9141


Murder Defenses (Part 3)

Posted by Edward Chernoff | Aug 09, 2021 | 0 Comments

Can Intoxication be a Defense to Murder?

I don't remember the last Murder case I've had that didn't involve alcohol or drugs. In some cases, my clients were so severely intoxicated, he or she could not remember the events that resulted in the homicide. In some of my other cases, the victim and everybody else was blindly drunk or high on a drug. (Interestingly, I've had cases where marijuana dealers were killed but none where my client was merely high on marijuana.)

Sometimes a client will tell me that he was drunk and should not be held responsible for his actions. I usually agree with my client that violence would have been unlikely without the intoxicant but explain that the law does not allow intoxication alone to excuse violence. Penal Code §8.04 bluntly states “Voluntary intoxication does not constitute a defense to the commission of a crime.”

An accused cannot defend based solely on intoxication, but does this make intoxication irrelevant? Not necessarily. Penal Code §8.04(b) allows for evidence of “temporary insanity caused by intoxication” in mitigation of the punishment. (This evidence might require expert testimony to explain how a particular intoxicant removed the individual's ability to distinguish the difference between right or wrong.)

Another question is whether intoxication can be considered part of the “circumstances” the jury can consider in determining whether an individual acted in self-defense. If everyone was drunk out of their minds during an interaction where gun play resulted, can the jury not consider this when determining the reasonableness of the accused's actions? If so, can they not also consider the accused's intoxication? Would this be part of how the accused reasonably looked at the events unfolding before him?

This is a slippery slope for a criminal defense attorney. I can certainly envision an objection to a defense argument that focuses on the defendant's intoxication. The knee jerk reaction from the Judge would be to sustain the objection and instruct the jury to ignore voluntary intoxication. However, I believe an argument could be crafted that discusses intoxication in a context meant to portray the murder scene adequately, allowing the jury members to draw their own conclusions.

Voluntarily intoxication causes an individual to be diminished mentally and physically, even though the law obviously considers this to be the defendant's own damn fault. What about physical or mental infirmities that cannot be reasonably controlled by the accused? If a defendant with only one arm is attacked by an individual with fully functioning arms, would his limitation be part of the circumstances the jury should consider when determining whether the defendant acted in self-defense “reasonably”? Of course. How about poor eyesight? Insanity?

Insanity is a stand-alone defense, and it is complicated. Most have heard about the defense of insanity, but few really understand it. The defense is rarely used, but when applicable, it is most often seen in Murder cases. We will discuss it in the next post.

About the Author

Edward Chernoff

ABOUT ED CHERNOFF CALL TODAY FOR A FREE INITIAL TELEPHONE CONSULTATION AND DISCUSS YOUR CASE WITH ME.  I was born in 1962, and grew up in Florida. I lived in a trailer, and that is about all I remember from my childhood. I attended University of Florida and received an accounting degree in 1984...


There are no comments for this post. Be the first and Add your Comment below.

Leave a Comment

Contact Me Today

Chernoff Law is committed to answering your questions about Theft, Assault, Sex Crimes, Drug Crimes, Federal Crimes, Probation Violation, Murder, DWI/DUI, and Violent Crime law issues in Texas.

I offer a free consultation and I'll gladly discuss your case with you at your convenience. Contact me today to schedule an appointment.