Self Defense & Cocktails

[Lakedaemonian]

So here's my question... more like a hypothetical scenario that I am curious on.

So you get home from a long day at work, you crack open a beer and hit the armchair to kick your feet up. Around the time you finish your beer, you hear a foot slam into your front door, then another, by this time you grab your home defense weapon, bad guy storms in.. sees you and presents his weapon. You then put two in his chest and call the police. I know this situation can GREATLY differ from state to state, so let's say it happens in a more gun friendly state. Anyone here with a Law degree? Anyone here a Police officer? How do you see this situation going? The point here is the 12 ounces or so of beer in your system and we are operating under the assumtion that the police report states you had consumed a beer.

 

[kayak-man]

I'm no lawyer, and I'm not a cop. This is nothing more than speculation, but assuming that it happened fast enough, I think most competent lawyers could probably make the point in court that people don't get drunk instantly, and there would not have been time for any apreciable amount of alcohol to get absorbed into the blood stream.

I could be wrong, but hopefully none of us will ever have to find out.

Chris "the Kayak-Man" Johnson

 

[788Ham]

I for one, don't think one beer is going to put someone into hot water for a justifiable defense. One 12 oz. beer isn't going to affect one this quickly, granted, it was never stated over how long of a time period it took to consume this beer, 10 minutes, possibly 15 minutes? One might "slam" the beer down, its still going to have to go through the stomach and be absorbed into the blood stream, I personally don't think the brain will be affected, to where one's motor skills are so fuzzed up one wouldn't be able to function with a hand gun, and not be cognizant of his surroundings and not be able to take care of the situation being presented. JMHO

 

[pbearperry]

Drinking in your home does not equal someone busting into your home.Do what you have to do and after it's all over have another drink.After the Police leave of course.

 

[Frank Ettin]

I don't think there's any pat answer or magic formula. But the bottom line is that your alcohol consumption will most likely be a factor. I don't see any way it can not be.

If you are pleading self defense, you will need to establish that you satisfied the legal standard for the use of lethal force. That will essentially require you to show that you reasonably assessed the situation and exercised sound judgement in reasonably concluded that lethal force was necessary.

Alcohol affects perception and judgment. So a prosecutor will want to assert that your consumption of alcohol impaired your perception and judgment to the point that you could not reasonably assess the situation and reasonably conclude the lethal force was necessary. So you will need to present good evidence to the contrary.

All that does not mean that if you have a drink you will lose, nor does it necessarily mean you need to give up your enjoyment of adult beverages. All it means is that if you consume alcohol and then need to defend your self, your alcohol consumption is very likely to be a factor in the legal aftermath. It will be something you will need to deal with.

The thing is that alcohol consumption, even when modest and even when one's blood alcohol concentration is well within the legal limits, as a way in becoming an element in a great many kinds of cases, e. g., auto accidents. It is likely to be a factor whenever perception and judgment is a factor.

So you should consider that in deciding how you want to handle your life.

Yes, I'm a lawyer, but I'm not your lawyer. This is not legal advice. It's commentary based on my training and experience on a matter of general interest.

 

[mljdeckard]

Ask this question. If you have had a beer, and your life is in danger, is it a good idea to not defend yourself because you are worried about getting prosecuted?

It is always possible you will be prosecuted after a self-defense encounter. If you die, there is no chance at all.

 

[Shadow 7D]

Alcohol and guns don't mix
BUT

Just because your drunk, doesn't mean you forfeit your right to self defense...
BUT you might have a MUCH larger hill to climb to prove it.
INAL
and it will vary by state and LOCALITY, talk to a competent LAWYER if you are that concerned.

 

[hirundo82]

If you are pleading self defense, you will need to establish that you satisfied the legal standard for the use of lethal force. That will essentially require you to show that you reasonably assessed the situation and exercised sound judgement in reasonably concluded that lethal force was necessary.

I live alone. I live in Texas. I have no reason to believe the cops are going to be knocking down my door. Anyone who comes through my door unannounced has met the legal standard for use of fdeadly force in my state, no matter how many adult beverages I have consumed that evening (and there's no legal issue with possessing a firearm while intoxicated in one's home--not wise, but not illegal). Might make it a little harder in front of the grand jury, but unless I make a major mistake I'm confident I'd prevail.

 

[bigfatdave]

I don't give up my right to self-defense regardless of my beverage choices or location.

Self-defense is self-defense, stop agonizing about details.

 

[Sam1911]

Listen to fiddletown. He's answered as well as anyone can.

Anything about your condition at the time of a shooting could be introduced to inform the court about your decisions at the time. Were you drunk, were you angry or depressed, were you taking certain prescription medications, etc.?

But the standards your affirmative defense must meet -- that you were forced to shoot to stop an attacker who possessed the means and opportunity to do you great harm or to kill you -- don't change. All that changes is the assessment of those sitting in judgment about how reasonable your belief was that you did have to shoot. It's going to come up. It could be an important factor. No, you're not going to sit in your chair and be beaten to death to avoid legal problems because you've had a beer.

Now, alcohol (or many other things) may indeed cause you to have altered or unrealistic views of the situation. You could certainly make a real, serious, tragic mistake and face a legitimate conviction for killing someone unlawfully. But in the instance you describe (in your home, violent entry, etc.) you're on about the firmest ground you could occupy.

 

[dusty14u]

We had a situation here a few years ago much like you describe. I can't find the links right now but will try later. It happened in Driver, Va.

A convenience store owner was at home drinking. More than a few, he was found to be over the legal limit after the shooting. His house is within 100yds of his store and the alarm for the store is wired to his house and the police. The alarm goes off so he grabs his gun and heads to the store. He sees the broken glass where the thief gained entry and then sees the thief through the glass. He fires several rounds and kills the intruder. He said he thought he saw the intruder grabbing a weapon, which he though was a gun. They found a crowbar and other B&E tools on the intruder but no gun.

The intruder had a lengthy arrest record and was addicted to drugs. They no billed the shooter although the local media tried to work up citizens to push for prosecution. They kept repeating the fact that the man was legally drunk when he fatally shot the intruder.

In Virginia it is rare to prosecute an even somewhat justified shooting. Just recently an ex cop shot a burglar who was trying to steal a dogbox from his property. The ex cop shot from his house at the thief in the yard and hit him. He wasn't prosecuted either. Virginia doesn't have a castle doctrine but our laws genmerally favor the law abiding citizen and not career criminals.

 

[Bovice]

^^ 'MURRICA!

Anybody who breaks into my house and interrupts me and 'Jack' deserves to be shot!

Really though, in the situation you described it would not matter whether you had 1 beer or 12. It doesn't change the part where the guy runs in with a gun shooting at you in your own house.

 

[JohnBT]

"The point here is the 12 ounces or so of beer in your system "

You mean that beer you drank to calm your nerves while you were waiting for the police to respond to your call?

 

[henschman]

The self defense laws don't change depending on how intoxicated you are. If it was legally justified, it doesn't matter how drunk you were. The main legal problem you will run into in this situation is using deadly force when it is not reasonable because of impaired judgment/vision/motor skills.

The other possible legal issue is in dealing with law enforcement afterwards... if you are a chatty drunk, you may say some things that don't help the situation look like a justifiable homicide, and/or make you look like a possible scumbag to the cops.

Depending on how drunk you are, you may or may not be able to actually recognize these issues and do anything about them... obvously you don't plan your drinking schedule around being attacked. But if you are at least aware of these issues, you might hopefully be able to do something about them if you are capable of forming any kind of rational thought at all!

 

[RobNDenver]

Fortunately, in Colorado, the Make My Day statute could care less about your diminished capacity. If your home is broken into here, the burglar is culpable, the homeowner isn't.

 

[Sam1911]

Fortunately, in Colorado, the Make My Day statute could care less about your diminished capacity. If your home is broken into here, the burglar is culpable, the homeowner isn't.

Actually, I'm not aware of any law pertaining to self-defense that DOES directly address ("care") the defender's state of intoxication.

The decision to prosecute, or to convict if prosecuted, is going to come down to the validity of the homeowner's claim to have acted in self-defense. "Castle Doctrine" type laws ("Make My Day?" Good grief.) can simplify that process by giving the homeowner certain benefits of the doubt.

...any occupant of a dwelling is justified in using any degree of physical force, including deadly physical force, against another person when that other person has made an unlawful entry into the dwelling, and when the occupant has a reasonable belief that such other person has committed a crime in the dwelling in addition to the uninvited entry, or is committing or intends to commit a crime against a person or property in addition to the uninvited entry, and when the occupant reasonably believes that such other person might use any physical force, no matter how slight, against any occupant."

Meeting those criteria brings the law onto your side.

However, if the prosecution can establish that, due to your impairment (hypothetically here backed by the totality of evidence on site) your beliefs about the intruder's intentions and ability to harm you were not realistic or reasonable, the law may not be on your side after all.

"Castle Doctrine" laws do help reduce the task of proving the affirmative defense. They do not erase that responsibility, however.

 

[Frank Ettin]

The self defense laws don't change depending on how intoxicated you are. If it was legally justified, it doesn't matter how drunk you were....

But if the prosecutor decides he wants to dispute your claim of justification, anything that might have impaired your perception or judgment, e. g., alcohol consumption, fatigue, even proper and legitimate use of some prescription drugs, can give him an additional tool with which to do so.

...in Colorado, the Make My Day statute could care less about your diminished capacity....

Various "make my day" or "stand your ground" laws are good things for the responsible, armed citizen. But they aren't magic.

See this thread: Proof that Castle Doctrine Laws are not a Get out of Jail Free Card.

Also, remember the case of Mark Abshire. Despite defending himself and family on his own lawn in a fairly gun-friendly state with a "Stand Your Ground" law, he was arrested, went to jail, charged, lost his job and his house, and spent two and a half years in the legal grinder before finally being acquitted.

 

[Cosmoline]

But the bottom line is that your alcohol consumption will most likely be a factor. I don't see any way it can not be.

There are many scenarios where it would not be a factor, and where the police wouldn't even note it. If for example you shot an armed intruder who broke down your door and it was someone with a long record. In many (though not all) jurisdictions this sort of shooting never leads to any investigation let alone prosecution.

If the facts are more murky, and for example the intruder is UNarmed, then the officers may well go deeper into the facts and find that you were drinking. This could lead to questions.

Self defense is an affirmative defense, but that only really matters if the matter becomes a prosecution or suit. There are less formal and more discretionary stages before matters reach that point. Particularly if this is a criminal breaking into an occupied home, in most jurisdictions (though again not all) you're may get the benefit of doubts. The facts will hopefully speak for themselves.

All of that tends to change if you are drinking AT A BAR or somewhere other than your own home. There's no door to kick down at a bar, and you don't live there. Hopefully anyway.

And of course it would change if the intruder is an unarmed person and you're roaring drunk with slurred speech. It's a good idea never to get drunk anyway. But getting drunk is not the same as having a drink.

The front door to your home has legal significance. Sometimes ENORMOUS legal significance. Don't open it, EVER, to anyone unless you absolutely KNOW who they are. The act of breaking it down, picking the lock or otherwise busting through it is of tremendous importance. If you engage out on your lawn or your carport after some verbal bandying that's when ambiguities often arise. But there's little ambiguity about a door busted down by an intruder. Get back in your house. Both for C&C and because of that wonderful locked door.

And of course if you drink do not get drunk and certainly do not drink so much that it clouds your ability to make reasonable observations. Though in truth nothing is going to sober you up like some goblins breaking your door in.

 

[Kleanbore]

Posted by RobNDenver: Fortunately, in Colorado, the Make My Day statute could care less about your diminished capacity. If your home is broken into here, the burglar is culpable, the homeowner isn't.

Well, no.

First, while if a burglar breaks into your home he will have committed a crime, that alone is not sufficient to justify the use of deadly force, because there's more to it than that. Second, some of what is also required involves the reasonable belief of the occupant, and what is considered reasonable to others may not be what an impaired person believed at the time.

What constitutes "reasonable belief" is what a reasonable person would believe in the same circumstances.

If the jurors decide that they, based upon what the occupant knew at the time, would not have believed that the intruder had (1) committed a crime in the dwelling in addition to the uninvited entry, or (2) was committing, or intended to commit, a crime against a person or property in addition to the uninvited entry, and that the intruder might use against an occupant, the occupant's defense will not succeed.

While the provisions of so called "Make my day" law were exaggerated by opponents for a purpose, and while they have been oversimplified by pundits, it is important to not accept the errors that are now folklore.

Posted by Sam1911: The decision to prosecute, or to convict if prosecuted, is going to come down to the validity of the homeowner's claim to have acted in self-defense. "Castle Doctrine" type laws ("Make My Day?" Good grief.) can simplify that process by giving the homeowner certain benefits of the doubt.

Exactly. Such laws vary from state to state, but for the most part they provide that an occupant faced with unlawful entry, perhaps tumultuous, is presumed to have reason to believe that deadly force is justified; such presumptions are rebuttable, and as Sam has pointed out, the Colorado law requires more than that presumption.

Posted by Sam1911: However, if the prosecution can establish that, due to your impairment (hypothetically here backed by the totality of evidence on site) your beliefs about the intruder's intentions and ability to harm you were not realistic or reasonable, the law may not be on your side after all.

Bingo.

As Cosmoline points out, if it is clear from the evidence that an occupant had indeed been in imminent danger, the impairment would most likely not be a factor. However, if the facts are "murky"....

 

[THe Dove]

I can see all of your points in the previous posts. While being attacked in your own home is bad and I hope none of us are ever faced with that, I will do everything in my power to protect my family and myself and let the chips fall where they will. Nothing, not alcohol or prescription drugs, or the threat of spending the rest of my life in prison will deter me from protecting my family. PERIOD....

And yes, I love my Old #7 too!!!

The Dove

 

[Frank Ettin]

There are many scenarios where it would not be a factor, and where the police wouldn't even note it. If for example you shot an armed intruder who broke down your door and it was someone with a long record. In many (though not all) jurisdictions this sort of shooting never leads to any investigation let alone prosecution. ...

I would expect that in most jurisdictions, any act of significant violence will at least be investigated. It may be the case that it can be quickly concluded that that actor was justified in using force. And any alcohol consumption might be quickly dismissed as irrelevant.

The rub of course always is that one simply can not know ahead of time if his particular self defense incident will be of the "clearly justified" sort or of the "murky" variety.

 

[Cosmoline]

True, but that's a reason to keep your door shut and locked. It isn't a reason to abstain from drinking a cocktail (as in one) after work. As in many cases I think folks get hung up on the wrong factors.

For example, in this scenario let's say there's a knock and the resident opens the door as many folks do. The intruder pushes the door open, there is a little pushing match and the resident shoots the intruder. There we have little evidence of forced entry other than testimony of the shooter. Maybe an ambiguous bruise or scuffs on the floor. If the door is kicked in, there's instantly considerable physical evidence supporting the claim that this intruder was unlawfully entering the home with violent intent. There will be bits of wood from the frame all over, and the door bolt will be protruding out. And that isn't even going into the considerable tactical disadvantage of opening the door. It's much better to get in a good position some yards away, with your light and firearm, so you can assess the situation and take what measures need taking. If the door crashes in and the armed intruder comes forward, shooting would likely be in order if you don't want to die. But maybe the intruder won't kick it in all the way and he runs off. That's great! And maybe it's a SWAT team or your stupid neighbor. If you've done what you should you can assess and not shoot.

You don't want to shoot through the door of course. And if you have been smart and are not standing right by it you won't have to. All of these issues are more important than the cocktail.

 

[Kleanbore]

Reflecting upon Post #22

Some time ago, someone here or on TFL posted an account of feeling a cold breeze on his neck and finding a couple in the kitchen who had entered through an unlocked door. They had come to the wrong apartment.

Until then, we had left the doors unlocked until going to bed. Not any more.

However, I still do open the door to see what someone wants. Recently, it turned out to be somene who legitimately needed to change our electric meter because it had stopped sending a signal.

Thinking about it now, it's probably a good idea to not open the door at all, but to have a speaker system. Something to consider.

Also, for the "My Castle Law says I can...." crowd: our state code states that deadly force is justified if someone has entered the occupied house unlawfully, and unlawfully is further defined as "uninvited"; there's nothing about forcible entry. You will not find me relying on that verbatim for the purpose of making a decision regarding the use of force. It may come into play in a defense, however. I do hope not.

 

[Frank Ettin]

...It isn't a reason to abstain from drinking a cocktail (as in one) after work. As in many cases I think folks get hung up on the wrong factors....

I agree.

Life is full of tradeoffs. People will, I think, want to make well considered decision about how much they want to allow one factor or another influence their various choices in life. So I'm not necessarily inclined to give up my occasional cocktail or wine with meals (except when I'm traveling in Arizona and wearing a concealed gun in a restaurant). But I'm still careful about my alcohol consumption for a number of reasons.

I just don't think that erroneous information (like "it can't matter") is particularly helpful when trying to make those decisions.

 

[DCR]

I'm unaware of any state that requires anyone to give breath, urine or blood samples for criminal investigation purposes unless there was driving, flying, surgery or dental work involved. Feel free to correct me, but unless there's some sort of licensure involved, nobody has to give up breath, urine or blood without a court order, so refuse to talk about it and don't give any blood. Let them talk to your lawyer.

Just my $.02