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Intoxication and Criminal Charges

Potts Lawyers > Criminal Law & Offences  > Intoxication and Criminal Charges

Intoxication and Criminal Charges

Worried that a nasty hangover could be the least of your concerns after a big night?

It is not uncommon for people to find themselves doing things they wouldn’t usually do as a result of being intoxicated. Unfortunately, this can sometimes result in people waking up with a significant legal headache to accompany their physical one.

Everyone has heard someone utter the line ‘the rum/whiskey/tequila made me do it’ after an embarrassing episode at some point or other, but does this line hold up in court?

Is being intoxicated a defence to a criminal charge?

The short answer in Queensland is that this will depend on whether the intoxication was, to any extent, voluntary or not.

Section 28(1) of the Criminal Code states that the defence of being of unsound mind (otherwise known as the defence of insanity) continues to apply to a person ‘whose mind is disordered by intoxication or stupefaction caused without intention on his or her part by drugs or intoxicating liquor or by any other means.’

However section 28(2) states that this defence does not apply ‘to the case of a person who has, to any extent caused himself or herself to become intoxicated or stupefied.’ This section goes on to state that this is the case whether ‘his or her mind is disordered by the intoxication alone or in combination with some other agent.’

This means that if the person has knowingly and voluntarily consumed the intoxicating substance, even if they didn’t intend to become as intoxicated as they ultimately did, they are not able to defend a criminal charge arising from their actions whilst intoxicated on the basis of their intoxication.

On the other hand, if the person has consumed the intoxicating substance involuntarily (such as in a case of drink spiking) their intoxication may still provide a defence if their mental capacity was so reduced that it might otherwise raise a defence of insanity.

Is intoxication relevant to a criminal charge?

While in most cases intoxication won’t provide a defence against a criminal charge, it can still be relevant to a criminal matter in a number of different ways.

Element of offence

In some cases the fact that a person was intoxicated, or under the influence of an intoxicating substance, at the time they did a particular act is an element of the offence. This means that the person’s intoxication at the time is a fact that the prosecution must prove, beyond reasonable doubt, in order to convict the person of the offence.

Common examples of offences where intoxication is an element of the offence include driving whilst under the influence of alcohol or a drug, dangerous operation of a motor vehicle whilst adversely affected by an intoxicating substance, or as a ‘circumstance of aggravation’ for particular offences alleged to have been committed in public and whilst intoxicated.

In each of these cases the prosecution would need to lead evidence to prove that the defendant was intoxicated at the relevant time. This evidence could include the results of a breath test or blood test or in some cases could simply be eye witness testimony of someone who has observed the indicia (or signs) of intoxication such as slurred speech, lack of balance and motor control etc.

Interaction with other defences

While not a defence, intoxication can be a relevant factor in the application of a number of other defences in Queensland. Examples of this include the defence of insanity (as discussed above) and the defence of mistake of fact.

Mistake of fact

The defence of mistake of fact is raised when a defendant is found to have had an honest, and reasonable, but ultimately mistaken view that a particular situation existed at the time of the alleged offence. A common example is in respect of a rape or sexual assault charge where the defendant may claim to have believed the complainant was consenting to the sexual contact.

When considering this defence, a court is required to determine

a) whether the defendant honestly believed the situation existed, and

b) whether that belief was objectively reasonable in the circumstances.

At present, the defendant’s level of intoxication at the time is considered a relevant consideration for question a) whether they honestly held the relevant belief. This is because an intoxicated person might genuinely believe something that a sober person would not.

However, as question b) involves an objective test (a question of what an average person would think) the defendant’s level of intoxication is not a consideration for the court on this question.

At the time of writing this article the Criminal Law (Coercive Control and Affirmative Consent) And Other Legislation Ammendment Bill 2023 was before parliament but has not yet been passed into law. This Bill includes a provision that prohibits a court from taking a person’s level of intoxication into account at all for the purposes of considering the defence of mistake of fact in relation to the issue of consent in trials for sexual offences.


While not strictly a defence, a person’s level of intoxication can also be a relevant consideration for offences in which a particular intention is an essential element of the charge. Examples of this include murder and malicious act with intent.

In each of these charges the prosecution must prove that the defendant had a particular intention at the time they did the act which constituted the offence.

The defendant’s level of intoxication at the time is a relevant consideration when considering their intention as it may provide another explanation for why they acted in the manner they did. In cases of severe intoxication, a person’s condition may even be such that they are deemed not capable of forming the relevant intention at the time.


Intoxication at the time an offence is committed can also often be a relevant factor at sentence.

However, the fact that an offence was committed whilst the defendant was intoxicated is not automatically something that will see the penalty imposed on the defendant reduced.

In fact, section 9(9A) of the Penalties and Sentences Act states that ‘voluntary intoxication of an offender by alcohol or drugs is not a mitigating factor for a court to have regard to in sentencing the offender.’

For certain charges, the fact that a defendant was intoxicated at the time an offence was committed can result in the imposition of mandatory sentences where the court is bound by legislation to impose a particular sentence.

In some cases intoxication can be relevant simply as an explanation as to how an otherwise law abiding citizen came to find themselves on the wrong side of the law. However this alone will often not have a substantial impact on the sentence imposed by the court.

The most significant relevance of intoxication for sentencing purposes is in circumstances where it is coupled with efforts by the defendant to rehabilitate themselves.

Rehabilitation is one of the key principles of sentencing in Queensland and a matter the courts are required to take into account. For a defendant, being able to demonstrate that they have taken concrete steps towards dealing with any underlying issue that may have caused or contributed to their offending, and that they are therefore less of a risk of offending in the future, is one of the most powerful ways they can mitigate the sentence imposed upon them.


For expert legal advice about the potential impact of intoxication on your matter, whether as an element of a charge, a defence or a factor on sentence, contact one of our lawyers.

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