There is no bright line rule like for DWI that if someone is .08 or above they are intoxicated and therefore are too intoxicated to provide consent. This ultimately at first will be an issue for law enforcement to decide, then the prosecutors and then the factfinder…a judge or a jury.
The best advice is always that, if it is a question you are asking yourself, i.e., Is she too drunk to consent right now…DO NOT engage in sexual activity with her. That’s the safest way to live your life. But, I doubt you Googled “Is she too drunk to consent right now,” after arriving home with someone you met while out drinking all night at a bar. If so, DO NOT have sex with her. Instead, relax and enjoy our other blog posts because if there are doubts in your mind, having sex with her can create a risk of a sexual assault charge that will forever change your life.
However, if you have wound up in a situation like most of our clients, where you or a family member or friend are being investigated for or have been charged with sexual assault and are wondering legally, How Drunk is too Drunk to consent, we will do our best to answer the question here.
The simple answer is that it is going to depend on all of the facts of the case and it is a broad spectrum. Either end of the spectrum is typically easy to answer. On one end of the spectrum, the complainant (alleged victim) in a sexual assault case, has enough alcohol to get her to a level of about .08—legally intoxicated from the standpoint that she cannot lawfully operate a motor vehicle on a public roadway, but she is coherent, not stumbling and falling down and while she may have lost the “normal use of her mental or physical faculties,” to the average person, she is still functioning well and hanging out with friends. No, she should not drive, but yes, more than likely can consent to sexual activity. To be safe, if you were asking us beforehand, I would advise not having sex with this person at this time. But if you are asking regarding the defense of your case after the fact, I would argue you are probably fine, assuming there are no other drugs/intoxicants in her body. At the other end of the spectrum, the complainant has had several drinks in the presence of her friends, to the point where her friends were telling her to slow down. She is stumbling and needs to almost be carried by her friends and passes out on the couch after throwing up. More than likely, it would be extremely challenging to defend these facts. She would certainly appear to have been too drunk to consent or just completely incapacitated. Normally, the fact patterns we see, fall somewhere in between these extremes. What becomes so interesting is that culturally, the male almost would never claim he was sexually assaulted if he was too drunk to consent. And, if a male and female went out drinking together, each reached a level of .27 blood alcohol content, had sex and the female called the police and said she was too drunk to have consented, the male cannot claim he was too drunk to have committed the crime because voluntary intoxication is not a defense to any charge in the penal code.
There are countless items we investigate to determine after the fact whether the accuser was too intoxicated to consent: her blood alcohol level if known, drugs in her system, statements of witnesses, video, the individual accounts of the accused and the complaining witness, the sexual assault forensic examination, text messages and phone records, among many other items.
This is an extremely complex area of law with far reaching consequences and we are there to guide you through it every step of the way.
We are here to fight for you.
From your first meeting in our firm, we know you will recognize this is more than what you expected out of a law firm. We pride ourselves on professionalism in and out of court, our accessibility (our clients know they can set up an appointment and speak with us when they would like and will often email us directly about any questions or concerns), and our passion for the law. Contact our criminal defense team today by calling (512) 494-4070 or requesting a free consultation online now.
Steven Brand is a Board Certified criminal defense lawyer who graduated cum laude from the Benjamin N. Cardozo School of Law in New York City, achieving distinction there as a member of the Order of the Coif. He holds a Bachelor’s Degree in Business Administration from the University of Michigan. During law school, Mr. Brand studied under attorney Barry Scheck, a nationally renowned death penalty lawyer and founder of the first innocence project. Mr. Brand is admitted to practice law in the states of Texas and New York and the U.S. District Court of the Western District of Texas, Eastern District of New York, Southern District of New York (New York City), U.S. Court of Appeals of the Armed Forces, Navy/Marine Corps Court of Criminal Appeals, Army Court of Criminal Appeals, and the Air Force Court of Criminal Appeals.
